Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28209/95

by Christos CONSTANTINOU

against Cyprus

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 June 1995 by

Christos CONSTANTINOU against Cyprus and registered on 10 August 1995

under file No. 28209/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

21 March 1996 and the observations in reply submitted by the

applicant on 26 July 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot citizen, born in 1983 and resident in

Nicosia. Before the Commission he is represented by Mr. Achilleas

Demetriades and Ms. Vicky Loizides, advocates practising in Nicosia.

The facts of the case as submitted by the parties may be

summarised as follows.

The applicant was born prematurely in Nicosia. It was discovered

that he suffered from Retrolental Fibroplasia, the cause of which was

established to be extreme prematurity combined with excessive oxygen

administration in the neonatal period.

On 9 December 1986 the applicant, represented by his father,

filed with the Nicosia District Court an action for damages against the

State (N° 10252/86), on the ground that his state of health was due to

medical negligence of Government doctors at his birth.

The case was fixed for mention on 14 March 1989 and was adjourned

eight times at the request of the parties who were considering an out-

of-court settlement.

On 16 January 1990 a notice of change of the plaintiff's

advocate, who was appointed by the Government as a member of the Legal

Service of the Republic, was filed in Court.

On 18 January 1990 the case was struck from the list in order to

allow the applicant's new counsel to apply for an amendment of the

statement of claim.

On 9 July 1990 the applicant's counsel filed an application by

summons, requesting leave of the Court to amend the specially indorsed

writ of summons and to file a new specially endorsed writ of summons.

This request was granted on 17 September 1990.

On 2 October 1990 an amended specially endorsed writ of summons

was filed with the Nicosia District Court.

On 2 November 1990 the applicant's counsel filed an application

by summons, requesting judgment in default of the defence. The next day

the defendant Attorney-General filed a statement of defence, following

which the plaintiff withdrew his application of 2 November 1990.

On 24 January 1991 the applicant's counsel filed an application

by summons, requesting further and better particulars. This was fixed

for hearing on 7 February 1991.

On 30 January 1991 the defendant's counsel filed a letter

replying to the application that none of the further and better

particulars requested existed in the form of a document.

On 7 February 1991 the case was adjourned by consent to allow the

defendant's counsel to file an opposition to the application and/or to

consider whether some further and better particulars could be provided

before the trial.

On 6 March, 22 April and 13 May 1991 the case was adjourned by

consent.

On 21 June 1991 the defendant's counsel stated that he would

submit by 1 September 1991 any particulars that may exist.

On 23 October 1991 the applicant's counsel filed an application

by summons, requesting that the defendant's counsel be ordered to

submit further and better particulars.

On 7 November 1991 the defendant's counsel requested time due to

difficulties to obtain the particulars. The applicant's counsel did not

object.

On 27 November 1991 the defendant's counsel requested time to

file an opposition to the application. The case was fixed for

17 January 1992 and then adjourned by consent to 4 February 1992, when

the defendant's counsel stated that two documents had been given to the

applicant's counsel.

On 19 March 1992 the applicant's counsel requested that the

action be fixed for hearing. On 8 May 1992 the hearing was fixed for

11 and 14 December 1992.

On 11 December 1992 the hearing was adjourned at the request of

the parties who were considering an out-of-court settlement.

On 14 and 15 December 1992 the case was heard and then adjourned

for further continued hearing on 27 January 1993.

On 27 January 1993 the applicant's counsel requested an

adjournment. The hearing continued on 15 February 1993.

On 24 February 1993 the applicant's counsel requested an

adjournment as his witness could not attend. The hearing continued on

3, 29 and 30 March and 9 April 1993. On 22 April 1993 the applicant

requested an adjournment as his counsel had undergone an eye-surgery.

The hearing continued on 14 June and 6 July 1993.

On 16 September 1993 the applicant's counsel requested an

adjournment as he had not been able to contact his witness. The hearing

continued on 14 October 1993.

On 4 November 1993 the applicant's counsel requested an

adjournment due to serious personal reasons. The hearing continued on

23 November 1993.

On 1 December 1993 the applicant's counsel requested an

adjournment because he was not ready to plead the case.

On 16 December 1993 the hearing was concluded.

On 21 March 1994 a 62-paged judgment was delivered, dismissing

action N° 10252/86 on the ground that no breach of professional medical

negligence on behalf of the defendant's servants had been proved.

On 3 May 1994 the applicant filed an appeal to the Supreme Court

of Cyprus. The hearing was fixed for 30 May 1996.

On 10 May 1996, the applicant informed the Registrar of the Court

that a new advocate had been appointed as his counsel. However, the new

counsel was later appointed as a District Court judge and the applicant

had to change advocate.

On 28 May 1996 the Registrar was informed of the new appointment.

The new counsel also informed the Registrar that on 30 May 1996 he

would be obliged to ask for an adjournment as the record of the case

was still not ready.

On 30 May 1996 the applicant's counsel received an incomplete

copy of the record of the action. The hearing was adjourned to

18 June 1996.

On 5 June 1996 the applicant's counsel informed the Registrar

that the record was incomplete and requested a complete set which was

given to him few days later.

On 12 June 1996 the applicant's counsel filed an application to

file additional grounds of appeal in relation to Articles of the

Convention. The application and the appeal were fixed on 18 June 1996.

On that day the Government informed the Court that they would file an

opposition to the application. The Court therefore directed the

Government to file an opposition within one month and adjourned the

case for hearing on 12 September 1996.

COMPLAINT

The applicant complains of the length of the proceedings and

invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 June 1995 and registered on

10 August 1995.

On 17 January 1996 the Commission decided to communicate the

applicant's complaint concerning the length of proceedings to the

respondent Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on

21 March 1996. The applicant replied on 26 July 1996, after an

extension of the time-limit.

By letter dated 24 February 1997, the applicant's lawyer informed

the Secretariat that after having reached an out-of-court settlement

with the Cypriot Government, the applicant has decided to withdraw his

application.

REASONS FOR THE DECISION

By letter dated 24 February 1997, the applicant's lawyer informed

the Secretariat that the parties have reached an out-of-court

settlement which provides that the Cypriot Government will pay the

applicant 55.000 CYP£ and costs. Therefore, the applicant has decided

to withdraw his application.

In these circumstances the Commission finds that the applicant

no longer intends to pursue his application. It further considers that

respect for Human Rights as defined in the Convention does not require

it to continue the examination of the application.

It follows that the application may be struck out the list of

cases pursuant to Article 30 para. 1 (a) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE REMAINDER OF THE APPLICATION OUT OF THE

LIST OF CASES.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

CONSTANTINOU v. CYPRUS

CONSTANTINOU v. CYPRUS

LEXI