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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 28054/95

Michael Mavronichis

against

Cyprus

REPORT OF THE COMMISSION

(adopted on 15 January 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-15) . . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 16-31). . . . . . . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 16). . . . . . . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 17). . . . . . . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 6 para. 1 of the Convention

(paras. 18-30). . . . . . . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 31). . . . . . . . . . . . . . . . . . . . . . . . . .8

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . .9

I. INTRODUCTION

1. The present Report concerns Application No. 28054/95 introduced

on 10 July 1995 against Cyprus and registered on 28 July 1995.

The applicant is a Cypriot national born in 1949 and resident

in Nicosia.

The applicant is represented before the Commission by

Mr. Christos Clerides, a lawyer practising in Nicosia.

The respondent Government are represented by their Agent,

Mr. Alecos Markides, the Attorney-General of the Republic of Cyprus.

2. The application was communicated to the Government on

29 November 1995. Following an exchange of written observations, the

complaint relating to the length of proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 26 June 1996. The decision

on admissibility is appended to this Report. The parties have

submitted observations on the merits of the case, the Government on

11 September 1996 and the applicant on 18 September 1996.

3. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 15 January 1997 in accordance

with Article 31 para. 1 of the Convention, the following members

being present:

Mrs. J. LIDDY, President

MM. L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the

Republic of Cyprus.

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

6. On 2 November 1981 a public body, the Industrial Training

Authority, appointed and employed in the position of Head of Accounts

a certain Mr. I instead of the applicant, who was the only other

candidate and who was found to possess higher qualifications than

those required for the post. The applicant filed a recourse before

the Supreme Court against I's appointment (Case No. 478/81).

7. I resigned in October 1982 and the post of Head of Accounts was

abolished in November 1983.

8. On 6 June 1984 the Supreme Court, ruling on a preliminary

objection by the Industrial Training Authority, found that, although

the post had been abolished, the applicant's recourse had not become

devoid of interest. The court considered that, if it found that the

applicant had been erroneously not chosen for appointment, it would

appear that the applicant had suffered a detriment for the purposes

of Article 146 para. 6 of the Constitution as a result of his

non-appointment. On 22 February 1986 the Supreme Court declared the

decision of the Industrial Training Authority null and void on the

ground that the Authority had disregarded without any justification

the applicant's higher qualifications.

9. On 13 April 1987, the applicant filed, before the District Court

of Nicosia, a civil action against the Industrial Training Authority

claiming damages under Article 146 para. 6 of the Constitution

(Action No. 3350/87). The statement of defence was filed on

8 October 1987.

10. On 18 April 1988 the action was fixed by the court for mention

on 16 May 1988. On that date both parties requested the court to fix

a date for hearing the case. The court fixed a hearing for

8 November 1988. On that date the court by its own motion adjourned

the hearing until 20 April 1989. On 20 April 1989 the court again by

its own motion adjourned the hearing until 27 October 1989. On

26 October 1989 the defendants applied for an adjournment. The

applicant did not object. The hearing was adjourned until

7 February 1990.

11. On 7 February 1990 the court started the examination of the

case. However, as this was not concluded on that date, the court

adjourned until 7 March 1990. On that date the applicant's advocate

asked for an adjournment. The defendants had no objection and the

court fixed the hearing for 5 April 1990. On that date the

examination of the case continued. Since, however, it was not

concluded, the court further adjourned until 10 May 1990. On that

date the court by its own motion adjourned the hearing until

5 June 1990. On 5 June 1990 the hearing of the case was completed and

the court reserved its judgment.

12. On 30 November 1990 judgment was issued in the applicant's

favour for the sum of 2,128 Cyprus pounds. On 8 January 1991, the

applicant filed an appeal before the Supreme Court (Appeal No. 8331),

contesting the amount adjudicated. The Industrial Training Authority

filed a cross-appeal claiming that the action should have been

dismissed.

13. On 12 August 1994 the applicant complained in writing to the

registrar of the court about the delays. On 15 March 1995 a hearing

was held in the case. The parties agreed that the cross-appeal should

be heard first, because if it was allowed this would dispose of all

the issues pending before the court.

14. On 20 June 1995 the Supreme Court considered that its decision

of 22 February 1986 which declared the appointment of I null and void

had not created an obligation for the Industrial Training Authority

to appoint the applicant and, as a result, the applicant was not an

aggrieved person for the purposes of Article 146 para. 6 of the

Constitution. The subsequent abolition of the post could not give

rise to a right to compensation to the extent that it had not been

annulled. The Industrial Training Authority was in principle under an

obligation to review the question of who should be appointed to the

post in the light of the above-mentioned decision of the Supreme

Court. However, in deciding whether it should do so, the Authority

was entitled to take into consideration the subsequent abolition of

the post which was not unlawful. In the light of the above, the

Supreme Court decided to allow the cross-appeal. The applicant's

action was dismissed.

B. Relevant domestic law

15. The Constitution of Cyprus provides as follows:

Article 146

1. The Supreme Constitutional Court shall have exclusive

jurisdiction to adjudicate finally on a recourse made to it on

a complaint that a decision, an act or omission of any organ,

authority or person, exercising any executive or administrative

authority is contrary to any of the provisions of this

Constitution or of any law or is made in excess or in abuse of

powers vested in such organ or authority or person.

4. Upon such a recourse the Court may, by its decision -

(a) confirm, either in whole or in part, such decision or act

or omission; or

(b) declare, either in whole or in part, such decision or act

to be null and void and of no effect whatsoever; or

(c) declare that such omission, either in whole or in part,

ought not to have been made and that whatever has been omitted

should have been performed.

6. Any person aggrieved by any decision or act declared to be

void under paragraph 4 of this Article or by any omission

declared thereunder that it ought not to have been made shall

be entitled, if his claim is not met to his satisfaction by the

organ, authority or person concerned, to institute legal

proceedings in a court for the recovery of damages or for being

granted other remedy and to recover just and equitable damages

to be assessed by the court or to be granted such other just

and equitable remedy as such court is empowered to grant.

Article 172

The Republic shall be liable for any wrongful act or

omission causing damage committed in the exercise or purported

exercise of the duties of officers or authorities of the

Republic.

A law shall regulate such liability.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

16. The Commission has declared admissible the applicant's complaint

that his claim for compensation was not heard within a reasonable

time.

B. Point at issue

17. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" requirement referred to

in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

18. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

19. The Commission notes that the parties submitted extensive

argument on the nature of the proceedings by which the applicant had

challenged before the Supreme Court I's appointment to a post in the

public sector for which the applicant had been the only other

candidate (recourse No. 478/81). However, this was done in the

context of addressing the issue of whether the compensation

proceedings (action No. 3350/87) which the applicant instituted after

the conclusion of the first set of proceedings involved a

determination of civil rights and obligations within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. The length of the

first set of proceedings never formed the subject-matter of the

present application which concerns the length of the proceedings on

compensation only.

20. The applicant submits that Article 6 para. 1 (Art. 6-1) of the

Convention is applicable in the proceedings for compensation which

were separate from the proceedings by which he sought to have his

right to be employed in the public sector determined. The

compensation proceedings were ordinary civil proceedings in the

context of which the courts usually applied the rules concerning

master and servant. The Supreme Court, when hearing his appeal,

exercised its normal appellate jurisdiction. In any event, the

Government were not right in arguing that Article 6 para. 1

(Art. 6-1) did not apply in the first set of proceedings. Any

appointment in the public sector is based on a contract between the

State and the employee and in Cyprus most disputes concerning the

terms of employment of civil servants are decided by the civil

courts.

21. The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention does not apply in the proceedings in question. According

to the case-law, Article 6 (Art. 6) does not apply to disputes over

rights relating to the civil service. Moreover, the applicant's case

can be distinguished from Darnell v. United Kingdom (No. 15058/89,

Dec. 10.4.91, D.R. 69 p. 306) in that the applicant sought permanent

employment in the public sector and domestic law did not give him

access to the ordinary courts to challenge the failure of the

authorities to appoint him. By lodging recourse No. 478/81 the

applicant sought to challenge before the Supreme Court and under

Article 146 para. 1 of the Constitution an administrative act which

determined a right he allegedly had under public law. The civil

action No. 3350/87 which the applicant brought before the District

Court under Article 146 para. 6 of the Constitution was consequential

to his previous recourse, in that it presupposed a decision by the

Supreme Court declaring a decision of the administration challenged

under Article 146 para. 1 of the Constitution null and void.

22. The Government further argue that a civil action for damages on

the basis of Article 172 of the Constitution, which determines the

civil liability of the State for wrongful acts and omissions, is to

be distinguished from an action for damages under Article 146 para. 6

of the Constitution. Not every person who has succeeded in a recourse

under Article 146 para. 1 of the Constitution is considered to be an

aggrieved person under Article 146 para. 6. Moreover, the quantum of

damages to be awarded in an action under Article 146 para. 6 of the

Constitution is not assessed as in an ordinary action for damages.

The award must be just and equitable. The civil court, in fixing the

amount, takes into consideration the culpability of the

administration and of the plaintiff and does not apply the law of

master and servant.

23. The Commission notes that the applicant was suing before a civil

court a public authority for damages under Article 146 para. 6 of the

Constitution as a person aggrieved by an administrative act declared

to be void by the Supreme Court. The Commission considers that, given

the position expressed by the Supreme Court on 6 June 1984, the

proceedings instituted by the applicant involved a dispute over a

right which can be said, at least on arguable grounds, to be

recognised under domestic law (see Eur. Court HR, Neves e Silva

v. Portugal judgment of 27 April 1989, Series A no. 153, p. 14,

para. 37). The Commission also considers that, in the particular

circumstances, the nature of the act which has already been declared

void in separate proceedings cannot be decisive for the issue of

whether the action for damages involves a determination of civil

rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. What is decisive is the "pecuniary"

nature of the action for damages and in this respect the Commission

considers that the case is similar to case of Editions Périscope

(Eur. Court HR, Editions Periscope judgment of 26 March 1992, Series

A no. 234, p. 66, para. 40). The differences between an action of

damages under Article 146 para. 6 of the Constitution and an action

for damages under Article 172 thereof, as highlighted by the

respondent Government, do not justify, in the Commission's view, the

approach proposed by the Government, given the pecuniary nature of

the relevant claim as explained above. It follows that the purpose of

the compensation proceedings was to obtain a decision in a dispute

over "civil rights and obligations", and they accordingly fall within

the scope of Article 6 para. 1 (Art. 6-1) of the Convention.

24. With regard to the period to be considered, the Commission notes

that the proceedings began on 13 April 1987. The period which the

Commission has competence ratione temporis to examine began on

1 January 1989, when the recognition by Cyprus of the right of

individual petition took effect. However, in assessing the

reasonableness of the length of the proceedings account must be taken

of the state of the proceedings on 1 January 1989 (cf. Eur. Court

H.R., Foti and others judgment of 10 December 1982, Series A no. 56,

pp. 18-19, para. 53). The proceedings ended on 20 June 1995.

Consequently, the proceedings complained of lasted eight years, two

months and eight days.

25. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of

the case, the conduct of the parties and the conduct of the

authorities dealing with the case (see Eur. Court H.R., Vernillo

judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

26. The applicant submits that the case was not complex and that his

request for an adjournment did not delay the proceedings for more

than a month. The applicant further argues that he should not be

blamed for not objecting on 26 October 1989 to the defendants'

request for an adjournment. In any event, the above-mentioned request

did not delay the proceedings for more than three and a half months.

Finally, the applicant considers that there was no justification for

the delays before the Supreme Court.

27. The Government argue that the proceedings before the first

instance court were not unreasonable in length, given the complicated

nature of the issues involved and the fact that the hearing was once

adjourned at the applicant's request and once at the request of the

defendants to which the applicant did not object. The Government also

contend that length of the proceedings before the Supreme Court was

reasonable given the recent increase in the volume of litigation

before that court.

28. The Commission considers that the complexity of the case cannot

explain in itself the length of the proceedings. It also considers

that it is not necessary to determine whether the applicant or the

public authorities were responsible for the delays before the first

instance court. The Commission notes in this connection that before

the Supreme Court there existed a period of inactivity of more than

four years and two months, between 8 January 1991, when the applicant

filed his appeal to the Supreme Court, and 15 March 1995, when the

appeal was heard. The Commission considers that this delay is

imputable to the State and that no convincing explanation for it has

been advanced by the respondent Government. The excessive case-load

of the Supreme Court does not constitute such an explanation.

29. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision on

disputes relating to civil rights and obligations within a reasonable

time (cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A

no. 206-C, p. 32, para. 17).

30. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

31. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MAVRONICHIS v. CYPRUS

MAVRONICHIS v. CYPRUS

LEXI