Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23371/94

by Andreas LYSSIOTIS

against Cyprus

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 10 November 1993

by Andreas LYSSIOTIS against Cyprus and registered on 2 February 1994

under file No. 23371/94;

Having regard to :

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

the Commission;

- the Commission's decision of 6 September 1995 to communicate the

application;

- the observations submitted by the respondent Government on

9 November 1995 and the observations in reply submitted by the

applicant on 12 February 1996;

- the Commission's decision of 16 April 1996 to request further

observations;

- the additional observations submitted by the respondent

Government on 8 May 1996 and by the applicant on 22 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot citizen and a pensioner, born in 1923

in Famagusta and currently residing in Larnaca.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

On 28 March 1973 the applicant acquired a plot of land measuring

one and 3/4 acres. On 24 March 1977 the Ministry of Transport decided

to expropriate one and 1/4 acres (1719 square metres) of the

applicant's land in order to construct the Nicosia-Limassol highway

(administrative act 234/24.3.77). On 9 January 1981 another 850 square

feet (79 square metres) were expropriated (administrative act

10/9.1.91).

On 13 August 1983 the Land Registry Office of the Province of

Limassol offered the applicant 4,200 Cyprus pounds by way of

compensation. The applicant rejected this offer on 24 September 1983.

On 10 December 1985 a second offer of 3,880 pounds was made to

the applicant, which he rejected as well.

On 4 September 1987 the Land Registry referred the case of the

applicant, together with other similar cases, to the District Court

(Eparhiako Dikastirio) of Limassol (reference No. 29/87).

On 20 November 1987 Mr. G. G., a lawyer practising in Cyprus,

declared before the District Court that he would be representing the

applicant in the proceedings. The applicant signed a power of attorney

authorising G. G. to act on his behalf in the specific case.

On 17 June 1988 Law 84/88 was enacted providing for the

recalculation of compensation awarded in expropriation cases. On

28 September 1988 an offer of 21,240 pounds was made to the applicant,

which he accepted on 3 October 1988. The applicant was not, however,

paid this sum, as the Republic lodged, on a date which has not been

specified, an appeal before the Supreme Court (Anotato Dikastirio)

challenging the applicability of the new law in cases of expropriation

pending before the courts.

On 29 September 1989 the Supreme Court considered that the

provisions of Law 84/88 did not apply in cases of expropriation pending

before the courts. Following this decision, the applicant was informed

on 18 November 1989 that the offer made to him on 28 September 1988 had

no legal basis and was null and void. The District Court of Limassol

would resume, as a result, the examination of case No. 29/87.

According to the Government, the proceedings before the District

Court followed the course which is described below.

On 13 November 1990 G. G. was summoned to appear before the

District Court of Limassol on behalf of the applicant at a hearing on

21 December 1990. On 21 December 1990 Mr. B. appeared before the

District Court on behalf of the applicant, replacing G. G. The Court

decided to adjourn the hearing until 22 February 1991.

At the hearing of 22 February 1991 the applicant was represented

by Mr. I., acting on behalf of G. G. The Court decided to adjourn the

examination of the case, insofar as it concerned the applicant and

certain other persons, until 29 March 1991.

On 26 February 1991 G. G. entered a claim on behalf of the

applicant. At the hearing of 29 March 1991 the applicant was not

represented. G. G. was, however, present in his capacity as

representative of certain other persons claiming compensation. The

Court decided to adjourn until 15 May 1991.

At the hearing of 15 May 1991 the applicant was represented by

Mr. K., acting on behalf of G. G. The Court decided to adjourn the

examination of the case, insofar as it concerned the applicant and

certain other persons, until 14 June 1991. At the hearing of

14 June 1991 the applicant was again represented by K., acting on

behalf of G. G. The Court decided to adjourn the case until

27 September 1991. At the hearing of 27 September 1991 the applicant

was represented by G. G. The Court decided to adjourn the case until

20 December 1991.

On 20 December 1991 the District Court of Limassol held another

hearing at which the applicant was not represented. G. G. was, however,

present in his capacity as representative of certain other persons

claiming compensation. The Court decided to adjourn the examination of

the case, insofar as it concerned the applicant, until

28 February 1992.

At the hearing of 28 February 1992 the applicant was not

represented. The Court heard the case in his absence and decided to

award him 8,696 pounds by way of compensation. On 10 August 1992 the

Land Registry issued an order of payment for the above-mentioned sum

in favour of the applicant.

The applicant claims that he was unaware of these developments.

In a letter addressed to the Commission dated 28 July 1994 the

applicant claims that "a year after he had received the letter of

18 November 1989 (informing him of the outcome of the proceedings

before the Supreme Court and of the resumption of the proceedings

before the District Court of Limassol) he went to the Registry of the

District Court of Limassol. There he met a former judge, whom he knew

by sight and the name of whom he would disclose to the Commission

later, showed him the letter of 18 November 1989 and together they

appeared before the Registrar who informed them that the case would be

decided in Nicosia." In his comments on the Government's reply to the

Rapporteur's request for information, the applicant claims that "a year

after he had received the letter of 18 November 1989 he visited the

Limassol Court Registrar accompanied by a lawyer, Mr. V, in order to

be informed of the date of lawsuit No. 29/87. The reply he received was

that the case was under investigation in Nicosia without explanation

by which body."

The applicant further claims that in November 1991 he assigned

his case to a lawyer practising in Nicosia, Mr. E. Two days later

Mr. E. informed the applicant that he could not represent him in the

particular case. Towards the end of 1992 the applicant claims to have

received a cheque dated 17 August 1992 for 8,696 pounds allegedly with

no cover letter, which he returned to the Limassol Land Registry on

20 January 1993.

In October 1993 the applicant claims to have contacted the

Attorney General's Office, where he was informed that case No. 29/87

had been heard and that he could no longer appeal against the decision

of the Provincial Court.

On 17 November 1993 the applicant wrote to the Ministry of

Transport and Public Works complaining that he had not been invited to

participate in the proceedings before the Provincial Court. By letter

of 20 April 1994 the Ministry of Transport gave the applicant a

detailed account of the history of the case. In the letter it is

mentioned that the applicant was represented before the District Court

by a lawyer from Larnaca, Mr. A. G. The surname of the latter is

identical with the surname of G. G.

Upon receipt of this letter, the applicant wrote on 4 and

26 May 1994 to A. G. asking him to clarify his role in the proceedings.

In his second letter the applicant refers to a telephone conversation

during which an employee of A. G. confirmed to the applicant that A. G.

"did not know anything" about the proceedings.

Relevant domestic law

Rule 14 of the Compensation Assessment Tribunal Rules of 1956

provides as follows:

"If ... any party to a reference does not appear at (the) time

and place (appointed for the hearing) the President or the

Tribunal may hear and determine the ... reference in his absence

and may make such order as to costs as he or it thinks fit."

Order 33 Rule 5 of the Civil Procedure Rules, which apply mutatis

mutandis by virtue of section 20 of the Compulsory Acquisition of

Property Law of 1962, provides as follows:

"Any judgment obtained where one party does not appear at the

trial may in a proper case be set aside by the Court upon such

terms as may seem fit, upon an application made within 15 days

after the trial."

Order 57 Rule 2 of the Civil Procedure Rules further provides as

follows:

"A Court ... shall have the power to enlarge ... the time

appointed by these rules, ..., upon such terms (if any) as the

justice of the case may require."

COMPLAINTS

1. The applicant originally complained of a violation of his rights

under Article 1 of Protocol No. 1 in that he had not been paid adequate

compensation for the expropriation of his land.

2. In his observations in reply of 12 February 1996, the applicant

further complained of a violation of Article 6 para. 1 of the

Convention since he had not been heard in the determination of his

civil rights and obligations.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 November 1993 and registered

on 2 February 1994.

On 12 December 1994 the Rapporteur, acting under Rule 47 para. 2

of the Commission's Rules of Procedure, requested the Government of the

Republic of Cyprus to inform him before 26 January 1995 whether the

applicant or his lawyer were duly summoned to appear before the

District Court of Limassol which decided on 28 February 1992 that the

applicant should be awarded 8,696 pounds by way of compensation

(reference No. 29/87) and whether the applicant was represented by an

authorised representative in the proceedings.

A reply by the Government was submitted on 31 January 1995.

On 27 February 1995 the Rapporteur, acting under Rule 47 para. 2

of the Commission's Rules of Procedure, requested the Government of the

Republic of Cyprus to provide him before 10 April 1995 with a copy of

the summons by which the applicant or his lawyer were requested to

appear before the District Court of Limassol and a copy of the court

documents on the basis of which the Ministry of Transport and Public

Works concluded in their letter of 20 April 1994 that the applicant was

represented in the above-mentioned proceedings by Mr. A. G.

The Government submitted the information requested on

6 April 1995. The applicant submitted his comments on 18 May 1995.

On 6 September 1995 the Commission decided to communicate the

application.

The Government's written observations were submitted on

9 November 1995. The applicant replied on 12 February 1996 after an

extension of the time-limit fixed for this purpose.

On 16 April 1996 the Commission decided to request the parties

to submit further information on the case-law of the domestic courts

which would support their respective conclusions regarding the

prospects of success of an application under Order 57 Rule 2 to have

the time-limit for filing an application under Order 33 Rule 5

extended.

The respondent Government submitted the information requested on

8 May 1996 and the applicant on 22 May 1996 after an extension of the

time-limit fixed for that purpose.

THE LAW

The applicant complains of a violation of his rights under

Article 1 of Protocol No. 1 (P1-1) in that he has not been paid

adequate compensation for the expropriation of his land. He also

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

Convention in that he was not heard in the determination of his civil

rights and obligations.

The Government submit that the applicant has not exhausted

domestic remedies in that he did not lodge an application under

Order 33 Rule 5 of the Civil Procedure Rules to have the judgment of

28 February 1992 of the District Court of Limassol which fixed the

amount of compensation set aside. Although the applicant claims that

he was not informed in time of the above-mentioned judgment, he could

have asked for an extension of the time-limit for filing such an

application in accordance with Order 57 Rule 2 of the Civil Procedure

Rules. The courts enjoy unfettered discretion insofar as extensions of

time-limits are concerned. This discretion is exercised in the light

of the circumstances of each case and in the interests of doing justice

and avoiding injustice. A case where the advocate has failed to appear

at the trial thus causing injustice to the case of his client is a

classical example of a case where the national court will find that the

justice of the case requires an extension of the time-limit for filing

an application under Order 33 Rule 5. However, long delays in asking

for an extension should be satisfactorily explained.

The applicant claims that he did not appeal against the judgment

of 28 February 1992 of the District Court of Limassol in time because

he had been given wrong information by the authorities about the state

of the proceedings in November 1990 and had not learned about their

outcome before October 1993. Given the length of time which had elapsed

since the delivery of the judgment, it was highly unlikely that the

court would extend the time-limit for the appeal.

The Commission recalls that, in accordance with Article 26

(Art. 26) of the Convention, it may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law". Moreover, in accordance with

the Commission's case-law, where doubts exist as to the effectiveness

of a domestic remedy, that remedy must be tried (No. 13699/88,

Dec. 7.3.90, D.R. 65 p. 245).

The Commission notes that the applicant claims that he was first

informed of the decision of 28 February 1992 of the District Court of

Limassol in October 1993. However, even assuming that the applicant

version of the facts is correct, the Commission considers that it has

not been established that the applicant was at that time effectively

barred from lodging an appeal. The applicant could have asked for an

extension of the time-limit in accordance with Order 57 Rule 2 of the

Civil Procedure Rules and nothing has been submitted which could lead

to the conclusion that, in the particular circumstances of the case,

such an application would have had no prospects of success.

It follows that the applicant has not complied with the rule

concerning exhaustion of domestic remedies in Article 26 (Art. 26) of

the Convention and that his application must be rejected in accordance

with Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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LYSSIOTIS v. CYPRUS

LYSSIOTIS v. CYPRUS

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