Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16155/90

by T.C.

against Cyprus

The European Commission of Human Rights sitting in private on 11

February 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 October 1989

by T.C. against Cyprus and registered on 13 February 1990 under file

No. 16155/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 21 March 1991 and to the applicant's observations in

reply presented on 23 May 1991;

Having regard to the parties' submissions in view of and at the

oral hearing of 11 February 1992;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Cypriot citizen born in 1914. He is a

pensioner residing in Nicosia. In the proceedings before the

Commission he is represented by Mr. Andreas Eftychiou, a lawyer

practising in Nicosia.

On 13 June 1983 the District Court of Nicosia gave a judgment

whereby an amount of £550 plus interest and costs was awarded to the

Popular Cyprus Bank Ltd. against a certain A, as primary debtor, and

against the applicant as guarantor.

On 20 September 1984 the same court ordered that the debt be paid

by monthly instalments of £35, the first instalment being payable on

1 April 1985.

As the debtors failed to pay, the bank asked the District Court

to issue an order of imprisonment against the debtors according to

Article 82 of Part VIII of the Civil Procedure Act, Chapter 6, which

provides as follows:

"Where upon any investigation by the Court respecting the

ability of a judgment debtor to pay the amount due under a

judgment or order, it appears to the Court that the

creditor has been unable to obtain satisfaction of his

judgment by the sale of the debtor's property or by

attachment of property in the hand of some third party; and

(a) that the debtor then has or since the making of the

judgment or order has had sufficient means to pay the money

directed to be paid by him, or some part thereof which

still remains unpaid, and that he refuses or neglects to

pay it according to the judgment or order; or

(b) that he has made or suffered to be made any gift,

delivery, or transfer of any property, or changed, removed

or concealed any property and has thereby prevented the

creditor from obtaining payment of the judgment debt or any

part thereof,

the Court may on the application of the creditor commit the

debtor to prison for any term not exceeding twelve months,

or until the payment of the sum due, subject to the

provisions hereinafter contained; but may at any

subsequent time order his release on the request of the

creditor."

In an affidavit in support of their application, the bank

submitted that "to the best of their knowledge and belief" the

defendants had no attachable property but that they had had since the

making of the judgment order sufficient income to pay the debt but

refused to comply with the court order.

The applicant opposed the above request. In two affidavits he

submitted he stated that he was 74 years old, that he was earning £74

per month, that due to his age and health condition he was unable to

work regularly and that he and his wife were financially supported by

their daughter. He concluded that he was unable to pay.

The District Court summoned the applicant to appear before it in

order to examine whether he had sufficient means to pay and, if so, to

order the imprisonment of the applicant for contempt of court.

On 14 February 1987 the applicant and his counsel appeared before

the judge of the District Court in the latter's office. The

applicant's counsel declared that the applicant had already paid part

of the debt, that he was a guarantor and was awaiting the main debtor

to pay and that he still needed four months. On 19 April 1987 the

District Court ordered the imprisonment of the applicant for sixty days

unless he paid the debt within ninety days.

The main debtor died on 3 November 1987 and an administratrix of

her estate was appointed.

On 28 December 1988, on application by the applicant, a judge of

the Supreme Court granted leave for filing an application for an order

of certiorari.

On 12 April 1989 Judge J. Kourris issued an order of certiorari

quashing the judgment of the District Court. The judge recalled that

"a court, before committing a debtor to prison for any term, must be

satisfied that the debtor then, or since the making of the judgment

order, has sufficient money to pay the money directed to be paid by

him, or some part thereof which still remains unpaid, and that he

refuses or neglects to pay it according to the judgment order". In the

present case the judge found that the District Court judge proceeded

to issue the order committing the applicant to prison "without holding

an inquiry to satisfy himself that the judgment debtor (had) sufficient

means to pay the monthly instalments, and that he refused or neglected

to pay same". The judge found that the District Court "acted in excess

or abuse of jurisdiction".

In the context of these proceedings the applicant had initially

complained that the order of imprisonment infringed Article 11 of the

Cypriot constitution which guarantees the right to liberty. However the

order of certiorari did not consider this point since the applicant

withdrew this complaint in the course of the proceedings.

On 29 September 1989 the Full Bench of the Supreme Court admitted

an appeal by the bank against the above order of certiorari. The Court

found the following:

"It is obvious from the statement of the counsel of the

respondent, which was made in his presence, that he

admitted that he paid an amount and that he awaited, as

guarantor, that the debtor would settle the judgment debt.

In other words, once she did not comply, the respondent

would pay but needed four months therefor ... This

statement gave the clear impression that all the

allegations contained in the affidavits filed in support of

the opposition to the order of imprisonment were abandoned.

Therefore the Judge made the order of imprisonment

justifying it in a due manner, since it relied not only on

the above statement of the counsel, but also on the

affidavit made on behalf of the bank in support of its

application, which affidavit remained unchallenged.

Undoubtedly, the order of imprisonment could have been

given as imprisonment could have been ordered after a

confession by the accused."

In a dissenting judgment Judge Stylianides upheld the order of

certiorari. He found that an imprisonment according to Article 82 of

Part VIII of the Civil Procedure Act, Chapter 6 had a punitive

character and that the debtor's guilt should be proven beyond any

reasonable doubt. In his opinion, the conviction of the applicant

violated the latter's right to a fair trial and to be presumed innocent

until proved guilty.

The applicant has not been detained since he paid the debt at

issue.

COMPLAINTS

The applicant complains that in the context of the above

proceedings he did not have a fair and public trial, and, in

particular, that he was not allowed to defend himself effectively since

the courts completely disregarded his submissions. He moreover submits

that due to the alleged unfairness of the said proceedings the order

of imprisonment given by the Cypriot courts violates his rights under

the Convention. The applicant invokes Articles 5, 6 and 14 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 October 1989 and registered

on 13 February 1990.

On 3 April 1990 the applicant requested the Commisison to take

measures to stay execution of the order of imprisonment against him.

On 6 April 1990 the Commission considered this request under Rule

36 of its Rules of Procedure. It decided not to indicate to the

respondent Government the measure suggested by the applicant.

On 10 December 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application before 22 February 1991.

After extension of the above time limit, granted by the

President, the Government submitted their observations on 21 March

1991. On 19 April 1991 the Commission granted legal aid to the

applicant.

The applicant submitted observations in reply on 23 May 1991.

On 5 September 1991 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

At the hearing which took place on 11 February 1992 the parties

were represented as follows:

For the Government

Mr. Michael Triantafyllides, Attorney General of the Republic,

Agent of the Government

Ms. Toula Polychronidou, Counsel of the Republic (A), Counsel

For the applicant

Mr. Andreas Eftychiou, Lawyer in Nicosia

THE LAW

1. The applicant complains that he did not have a fair trial in the

determination of the charge of contempt of court against him. He

submits that he has not been given the opportunity to defend himself

since his submissions were disregarded by the courts. He invokes

Article 6 (Art. 6) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention guarantees, inter

alia, the right to a fair hearing in the determination of a criminal

charge. Under Article 6 para. 2 (Art. 6-2) of the Convention everyone

charged with a criminal offence shall be presumed innocent until proved

guilty according to law. Article 6 para. 3 (Art. 6-3) guarantees

certain minimum rights to everyone charged with a criminal offence.

The Government first submit that the order which constitutes the

subject-matter of the application was issued before 1 January 1989, the

date on which the Commission's competence to receive individual

applications against Cyprus took effect. They argue that the

application should be declared inadmissible as incompatible ratione

temporis with the provisions of the Convention.

The Commission does not share this view. It is true that the

application concerns an order for imprisonment issued on 19 April 1987.

However, the legality of this order under domestic law was determined

by a final decision of the Full Bench of the Supreme Court on 29

September 1989. This final domestic decision, which should be regarded

as the subject matter of the present claim, falls within the

Commission's competence ratione temporis.

It follows that the Government's objection on this point must be

rejected.

The Government further submit that this complaint is incompatible

ratione materiae with the provisions of the Convention. The order for

the applicant's imprisonment is a means of execution of a civil

judgment and cannot be regarded as a decision on a "criminal charge"

against him. Consequently, Article 6 (Art. 6) of the Convention is not

applicable to the proceedings complained of.

Moreover, the Government argue that the applicant has not

exhausted the domestic remedies at his disposal according to the

generally recognised rules of international law. The Government note

that the applicant failed to appeal against the litigation order.

Finally, the Government submit that in the present case the

guarantees of Article 6 (Art. 6) have been observed.

The applicant contends that the order for his imprisonment had

a punitive character and that Article 6 (Art. 6) applies to the

proceedings concerned. He further points out that he filed a

successful application for an order of certiorari. He considers that

he pursued an effective remedy under Cypriot law and has, thus,

complied with the requirements of Article 26 (Art. 26) of the

Convention. Finally, the applicant submits that the district judge's

decision wholly ignored his submissions and affidavits. Consequently,

his right to a fair trial under Article 6 (Art. 6) was violated.

The Commission notes that notwithstanding the purpose of the

order for the applicant's imprisonment which was primarily the

execution of the civil court's order, the decision made by the district

judge could have resulted in the applicant's imprisonment for sixty

days. In these circumstances and having regard in particular to the

nature and severity of this measure (Eur. Court H.R. case of Engel and

others, judgment of 8 June 1976, Series A no. 22, pp. 34-35, para. 82)

the Commission cannot exclude that the proceedings complained of were

decisive of a "criminal charge" against the applicant within the

meaning of the above provisions of the Convention.

However, the Commission does not have to decide on this point,

nor to examine the Government's objection as to the exhaustion of

domestic remedies, since it finds that the examination of the

application, as it has been submitted, does not disclose any appearance

of a violation of the rights guaranteed under the provisions invoked.

The Commission recalls in this respect that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. It is not competent to examine an application 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 and freedoms set out in the

Convention (cf. e.g. No. 7987/77, Dec. 13.12.79, D.R. 18, p. 31).

Moreover, it is not for the Commission to decide whether or not

domestic courts have correctly assessed evidence, but only whether

evidence for and against the accused has been presented in such a

manner and the proceedings in general have been conducted in such a way

that he has had a fair trial (Barbera, Messegué and Jabardo v. Spain,

Comm. Report 16.10.86, Eur. Court H.R., Series A no. 146, pp. 48-49,

para. 102).

The Commission observes that in the present case the applicant

appeared before the competent judicial authorities assisted by his

counsel and that he could submit his arguments and allegations in the

way he wished. The decisions of the judicial authorities relied on the

evidence submitted and the statements made by the parties in the course

of fair hearings. The Commission does not find any indication that the

assessment of the evidence by the national courts was arbitrary. It

finds no appearance of a violation of the provisions invoked by the

applicant.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains that the District Court did not

deal with his case in a public hearing as required by Article 6 para.

1 (Art. 6-1) of the Convention.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. The mere fact that the applicant has submitted his

case to the various competent courts does not itself constitute

compliance with this rule. It is also required that the substance of

any complaint made before the Commission should have been raised during

the proceedings concerned (c.f. e.g. No. 10307/83, Dec. 6.3.84, D.R.

37, p. 113).

In the present case the applicant did not raise, either in form

or in substance, in the proceedings before the Supreme Court the

complaint concerning the lack of a public hearing he now makes before

the Commission.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and his application must in

this respect be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

3.Moreover, the applicant alleges that the order for his

imprisonment is contrary to the right to liberty and security of person

guaranteed under Article 5 (Art. 5) of the Convention.

The Government submit that Article 5 (Art. 5) does not apply to

the present case since the applicant has been neither arrested nor

detained. The Government further argue that the applicant has not

raised this complaint before the Cypriot tribunals and that he has not

therefore exhausted the domestic remedies at his disposal, according

to the generally recognised rules of international law. In any event,

the litigation order was in conformity with Article 5 para. 1 (b)

(Art. 5-1-b) of the Convention which permits to arrest and detain a

person "for non-compliance with the lawful order of a court".

The applicant argues that Article 5 (Art. 5) does not only apply

when actual deprivation of liberty has taken place but also where an

order for such deprivation has been issued.

The Commission finds that it is not required to decide whether

the provision invoked applied in the present case, since this complaint

must be declared inadmissible for the following reasons.

The Commission notes that the applicant withdrew his complaint

concerning the alleged violation of his right to liberty under Article

11 of the Constitution of Cyprus. An examination of the case does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from pursuing the complaint concerned in the

proceedings before the Supreme Court of Cyprus.

It follows that in this respect he did not exhaust the domestic

remedies and that his complaint must be declared inadmissible, in

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

4. The applicant finally invokes Article 14 (Art. 14) of the

Convention.

However, the Commission finds that the applicant has failed to

substantiate this complaint.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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