Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28054/95

by Michael MAVRONICHIS

against Cyprus

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 10 July 1995 by

Michael MAVRONICHIS against Cyprus and registered on 28 July 1995 under

file No. 28054/95;

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

16 February 1996 and the observations in reply submitted by the

applicant on 10 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot citizen and an accountant. He was born

in 1949 and is residing in Nicosia, Cyprus. He is represented by

Dr. Christos Clerides, an advocate practising in Nicosia.

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

parties, may be summarised as follows.

a) Particular circumstances of the case

On 2 November 1981 a public corporation, the Industrial Training

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

a certain Mr. I instead of the applicant, the only other candidate, 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).

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

abolished in November 1983.

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

objection by the defendants, 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.

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

of Nicosia, a civil action against the Industrial Training Authority

claiming damages (Action No. 3350/87). The statement of defence was

filed on 8 October 1987.

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.

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.

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.

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.

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

The Constitution of Cyprus

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 exercice or purported

exercise of the duties of officers or authorities of the

Republic.

A law shall regulate such liability.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings, which was so unreasonable as to

render his trial unfair.

2. The applicant also complains under Article 13 of the Convention

of the absence of an effective remedy in that he was not awarded

compensation despite a ruling by the Supreme Court that his rights had

been violated when he had not been appointed to a public sector post

which was subsequently abolished. He also claims that, in these

circumstances, it cannot be said that he had a fair trial.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 July 1995 and registered on

28 July 1995.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

16 February 1996. The applicant replied on 10 April 1996.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the proceedings, which was so

unreasonable as to render the trial unfair.

The Commission notes that, although the applicant refers to a

violation of the right to a fair trial, he does so in order to stress

the seriousness of the delays in the proceedings. His complaint

concerns, therefore, exclusively the right to a hearing within a

reasonable time in the determination of his civil rights and

obligations which is guaranteed in Article 6 para. 1 (Art. 6-1) of the

Convention and must be examined under this angle.

The Government submit that Article 6 para. 1 (Art. 6-1) does not

apply in the proceedings in question. The 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.

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.

As regards the substance of the complaint, the Government submit

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 length of the proceedings before the

Supreme Court was also reasonable given the recent increase in the

volume of litigation before that court.

The applicant submits, as regards the applicability of Article 6

para. 1 (Art. 6-1) of the Convention, that his case is analogous to

Darnell v. United Kingdom. If he had been appointed in the post, the

terms of his employment would have been governed by a contract which

he would have signed with the Industrial Training Authority. In any

event, the proceedings for compensation are separate from the

proceedings by which he sought to have his right to be employed in the

public sector determined. They were ordinary civil proceedings and the

courts usually applied the rules concerning master and servant. The

Supreme Court, when hearing his appeal, exercised its normal appellate

jurisdiction.

As regards the substance of the complaint, 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

should not be blamed for not objecting 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. There was no

justification for the delays before the Supreme Court.

In the light of all the above and the criteria established in the

case-law of the organs of the Convention concerning "reasonable time"

(complexity of the case, conduct of the parties and the conduct of the

authorities dealing with the case), the Commission considers that the

complaint concerning the length of the proceedings raises serious

issues of fact and law, including the question of the applicability of

Article 6 para. 1 (Art. 6-1) of the Convention, which cannot be

resolved at the present stage of the examination of the application,

but calls for an examination of the merits.

2. The applicant complains under Article 13 (Art. 13) of the

Convention of the absence of an effective remedy in that he was not

awarded compensation despite a ruling by the Supreme Court that his

rights had been violated when he had not been appointed to a public

sector post which was subsequently abolished. He also claims that, in

these circumstances, it cannot be said that he had a fair trial.

The Commission recalls that, in accordance with its case-law, it

is not competent to deal with complaints alleging that errors of law

or fact have been committed by domestic courts, except where it

considers that such errors might have involved a possible violation of

any of the rights or freedoms set out in the Convention (No. 458/59,

Dec. 29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73,

Collection 43 p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).

Moreover, the Convention does not guarantee a right to be

appointed to a public sector post and, as a result, Article 13

(Art. 13) of the Convention does not apply in the circumstances of the

case.

It follows that this part of the application must be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint concerning the length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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MAVRONICHIS v. CYPRUS

MAVRONICHIS v. CYPRUS

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