FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32071/04 by Costas MENELAOU against Cyprus

The European Court of Human Rights (First Section), sitting on 12 June 2008 as a Chamber composed of:

Christos Rozakis , President, Anatoly Kovler , Elisabeth Steiner , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 16 July 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case toget her;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Costas Menelaou, i s a Cypriot national who lives in Limassol , Cyprus . He had been granted legal aid covering part of his costs for the proceedings before this Court and was represented by Professor M. Shaw QC , a barrister practising in London . The Cypriot Government (“the Government”) were re presented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The applicant was arrested on 20 April 1999 and was remanded in custody until 12 May 1999. On 15 February 2000 he was committed for trial before the Assize Court of Limassol sitting on 30 March 2000. On the latter date, he was formally charged with a series of offences dating from 15 July 1997 to 4 January 1999. He pleaded not guilty.

A lengthy series of adjournments of the proceedings followed. On 26 June 2000 the court adjourned the case to 3 October 2000, and then to 27 November 2000 as another case which was pending before it had been assigned priority. On the same ground the hearing was adjourned twice more. On 28 May 2001, the applicant ’ s request for an adjournment was granted and the case fixed for 5 November 2001. On that date, the case was further adjourned on the basis of a request submitted by the prosecution and was fixed for hearing on 28 January 2002. On the latter date, the applicant requested an adjournment. This was granted by the court which noted that it was, in any event, unable to proceed because it was engaged in the trial of another case. It fixed the case for 29 April 2002 when it adjourned it to 23 September 2002 due to lack of time as it had three ongoing trials. On that date, the hearing was again adjourned to 17 March 2003 and it was further adjourned at the applicant ’ s request because in fact the court had two other hearings. On 12 September 2003, the applicant requested a further adjournment due to the deterioration of his health following a road accident. The case was accordingly adjourned to 14 October 2003.

On that date the applicant applied for a stay of the proceedings on the ground that the excessive delay violated Article 30 of the Constitution guaranteeing the right to a fair trial within a reasonable time and Article 6 of the Convention. The Assize Court granted the application. Reference was made to a period of three and a half years when “there was complete inactivity in the case” and for which “the excessive workload of the Assize Court ” was responsible. It observed that the trial had been adjourned ten times without the applicant being responsible, and that even on the three occasions when he had himself requested an adjournment, this was granted because of the court ’ s inability to pursue the case. It therefore concluded that three and a half years ’ delay, from the filing of the case until 12 September 2003, constituted a breach of the reasonable time requirement. It noted that while the European Court of Human Rights had never found that a violation of Article 6 of the C onvention required the quashing of a conviction, this was one of the remedies offered by the common law in appropriate circumstances. For instance, where the delay took place after the lodging of an appeal against conviction, the appropriate remedy would be a reduction of a sentence, whereas if the delay had arisen before the trial began, as in the present case, one of the available remedies would be to uphold an accused ’ s plea in bar of the trial. Reference was made to the House of Lords ’ judgment in Attorney General ’ s Reference no.2 of 2001 (J) (2001) EWCA Crim. 1568 where it had been stated with regard to stay of proceedings that although it was a remedy which the court could grant, it should be confined to situations which in general terms amounted to an abuse of process. It was noted , however, that Cyprus case-law on this point was clear: where the shortcomings in the fairness of the proceedings could be remedied by a retrial, a retrial should be ordered where possible ; b ut if the constitutional rights of an accused had been infringed by a failure to put him on trial within a reasonable time, he should not be obliged to prepare for a trial which would necessarily take place after an unreasonable length of time. In the view of the Assize Court , the only appropriate remedy for the unreasonable length of the proceedings under examination was to stay the proceedings and order the applicant ’ s discharge.

The Supreme Court in its judgment of 14 April 2004 criticised the Assize Court ’ s assessment of the delay since it had only relied on the length of the period and had not considered other relevant factors, such as the complexity of the case and the applicant ’ s own conduct. Moreover, it found that the Assize Court ’ s account of the relevant adjournments had been inaccurate: while the court itself had been responsible for a number of them, the applicant had not objected and he had himself requested the adjournment of the case on a number of occasions. It observed that according to its case-law unreasonable delay could be remedied by taking it into account in the reduction of sentence. For all the above reasons it considered the decision of the Assize Court erroneous and held that it should be set aside and the case sent for retrial by the Assize Court .

On 20 May 2005 judgement was delivered by the Assize Court which found the applicant guilty of the offences of falsification of accounts and stealing by an employee. The applicant was acquitted of ten other charges of steeling by an employee and more serious charges of falsification of documents.

On 24 May 2005 the same court proceeded to sentence the applicant. It considered that given the seriousness of the offences of which he had been convicted, involving breach of confidence and elements of fraud, the only appropriate sentence would be that of imprisonment. The maximum sentence provided for by the relevant provisions of the Criminal Code at the time of commission of the relevant offences was seven years ’ imprisonment. The Assize Court referred to the previous decision of the Supreme Court in the case, noting that a finding that a trial had not been concluded within reasonable time could be remedied by taking the delay into account as a mitigating factor. It stated that:

“It is a fact that the lapse of six years from the date of the applicant ’ s arrest and more than seven years (almost eight) from the commission of the offences for which he has been found guilty, constitutes in itself a period of time that should be taken into account in the determination of an appropriate sentence. The uncertainty of the pending proceedings leading to understandable anxiety about one ’ s guilt or innocence is in itself harrowing, but this is aggravated by the circumstances of this case, which we will attempt to summarise in the context of our duty to impose a sentence:

(a) the accused has been acquitted after a lengthy hearing of most of the charges brought against him;

(b) Despite the fact that certain requests for an adjournment were made on behalf of the defence, responsibility for the length of the proceedings could not be attributed to them given the conduct of the proceedings as a whole...

(c) During this period of time... the accused ’ s [personal] circumstances had deteriorated. In addition to the anguish he went through due to the pending proceedings, he had lost his employment in the bank and was unable to find a new job.... Moreover, [it was asserted on behalf of the accused that ] because of the proceedings he could not get married.

....

We have carefully examined the circumstances of the present case knowing that they lasted for such a long period that their duration must have a substantial impact on the sentence as a primary mitigating factor.

Having examined the seriousness of the offences and balanced every other relevant factor, we find that the appropriate sentence cannot be other than that of imprisonment. The length of the proceedings in combination with the accused ’ s lack of criminal record, the devastating effects that the proceedings had on his life (and, in particular, his loss of employment and career prospects) must have a significant impact on the pr ison sentence that is to be pas sed.”

Accordingly, the applicant was sentenced to eight months ’ imprisonment on each of the two counts of falsification of accounts and ten months ’ imprisonment on each of the counts of stealing in respect of which he had been convicted. All the sentences were to run concurrently. The applicant ’ s request for suspension of the sentence of imprisonment was rejected.

B. Relevant domestic law and practice

Article 30 (2) of the Cyprus Constitution provides as follows, in so far as relevant:

“In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by an independent, impartial and competent court...”.

In the case of Eustathiou v. the Police (1990) 2 S.C.J. 294 it was stated:

“This case had been repeatedly adjourned without a valid reason and without the accused ’ s culpability. Hence, the accused ’ s criminal liability had not been determined within reasonable time in breach of his right guaranteed by Article 30 (2) of the Constitution. Thi s finding leads to the quashing of the conviction as well as the proceedings in their entirety including the arrest order and confiscation of the applicant ’ s surety.”

In the case of Christopoulos v. the Police (2001) 2 C.L.R. the Supreme Court stated that:

“A violation of the rights guaranteed by Article 30 (2) of the Constitution ... renders the proceedings void in their entirety .”

However, in the recent case of Theocharous v . T he Republic , Criminal Appeals 185/2006 and 210/2006 of 21 January 2008, the Supreme Court observed that the case-law of the European Court of Human Rights concerning the consequences of a violation of the fair trial guarantee due to the excessive length of the proceedings was not as strict as the position adopted by the Cyprus Supreme Court in its judgment in Eustathiou v . the Police (cited above) and subsequent cases. It concluded that the consequences ought to be determined in accordance with the extent of the violation at issue and the possible prejudice to an accused ’ s defence. Where a violation is demonstrated it should be taken seriously into account as a mitigating factor in sentence.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the fairness of the criminal proceedings against him had been tainted by their excessive length and the Supreme Court ’ s order for re-hearing of the case.

He further complained under Article 4 § 1 of Protocol No. 7 that the decision of the Supreme Court to order the Assize Court to re-hear the case, notwithstanding the earlier dismissal of the case, contravened the principle providing that no person should be tried twice for a criminal offence of which he has been acquitted.

Lastly, the applicant complained under Article 13 that no effective remedy existed in Cyprus for remedying the unreasonable delay both in a preventive as well as in a compensatory sense.

THE LAW

A. Article 6 of the Convention

The applicant complained under Article 6 § 1 of the Convention of a violation of his right to a fair trial within a reasonable time as provided in Article 6 , which reads as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

He further argued that, given the excessive delay, the Supreme Court ’ s decision to set aside the first Assize Court ’ s judgment, ordering his discharge owing to the protracted length of the proceedings, rendered the trial unfair.

1. The parties ’ submissions

The Government endorsed the judgments of the Supreme Court and Assize Court of 14 April 2004 and 24 May 2005 respectively and submitted that the applicant had ceased to be a victim for the purposes of this application.

Moreover, they maintained that given the fact that the applicant had not filed an appeal against the judgment of the Assize Court of 24 May 2005, he has not exhausted all available domestic remedies.

Lastly, the Government submitted that the delay in the criminal proceedings did not automatically mean that the applicant should be acquitted. They further referred to the doctrine of the margin of appreciation, stating that the domestic authorities were entitled to a certain discretion in order to confer an appropriate remedy for the delay in judicial proceedings.

The applicant submitted in reply that his application had been lodged on 16 July 2004 and while the timing of the Assize Court ’ s judgment was relevant for the determination of the end point of the long period of unreasonable delay, it could not act retroactively so as to wipe out that period of delay completely.

As for the Government ’ s claim that an issue of non-exhaustion of domestic remedies arose in the case, the applicant stated that this claim had not been explained; at the time his application had been lodged the period of unreasonable delay had already accumulated and his claim had been focused on the Supreme Court ’ s decision of 14 April 2004 allowing the appeal against his discharge .

The applicant submitted that the Supreme Court ’ s decision to set aside his discharge and order his retrial rendered the proceedings unfair contrary to the requirements of Article 6 § 1. The concept of the margin of appreciation was not absolute but flexible, being at its broadest in relation to issues of public morality and national security and at its narrowest in relation to questions of fair trial. He maintained further that the Supreme Court ’ s setting aside of his discharge constituted in reality a reversal of his acquittal and the imposition of a second trial amounting, as such, to double jeopardy.

2. The Court ’ s assessment

(a) The applicant ’ s complaint concerning the length of the proceedings

According to the Court ’ s case-law, reduction of sentence alone does not, in principle, remedy a failure to comply with the reasonable time requirement contained in Article 6 § 1 of the Convention with regard to criminal proceedings. However, the Court has accepted that this general rule is subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, p. 30, § 66; Beck v. Norway , no. 26390/95, 26 June 2001; and Morby v. Luxembourg (dec.), no. 27156/02, 13 November 2003).

As to the first criterion, namely the acknowledgement of a violation of the Convention, the Court observes that the Supreme Court quashed the Assize Court ’ s earlier decision and hence overruled its finding of a breach of Article 6 § 1 of the Convention on account of the length of the proceedings. Having established that the Assize Court had erred in its assessment of the relevant facts and principles of law, it remitted the case for re-hearing. The Court finds that the Supreme Court did not acknowledge either expressly or in substance a violation of the Convention right in question.

As for the subsequent judgment of the Assize Court, the Court notes that it did take into account the length of the proceedings in a manner that substantially acknowledged that the length of the proceedings did not comply with the reasonableness requirement of Article 6 § 1 of the Convention. Moreover, the Assize Court expressly acknowledged the negative effects which the criminal proceedings had had upon the applicant ’ s career and the general hardship to which he had been exposed.

Turning to the second criterion, concerning sufficient redress , the Court notes that the Assize Court , having established the applicant ’ s guilt , proceeded to pass a total sentence of ten months ’ imprisonment . The Criminal Code provided, at the material time, for a maximum sentence of seven years ’ imprisonment for each of the relevant counts. The sentencing court assessed the seriousness of the offences in respect of which the applicant had been convicted, which included breach of confidence and fraudulent conduct, and concluded that the appropriate sentence could be no other than that of imprisonment. The protracted length of proceedings was taken into account in mitigation of sentence. Although the sentencing court did not specify the exact reduction of the sentence on account of the length of the proceedings, the Court accepts that the applicant ’ s sentence had been , for that reason, adequately reduced.

Accordingly, given the sufficient acknowledgment by the domestic court of the excessive length of the proceedings and the provision of adequate redress for the violation, the applicant cannot complain to be a victim of a violation of his right to a hearing within a reasonable time, as guaranteed under Article 6 § 1 of the Convention. In light of this conclusion, the Court considers it unnecessary to examine the Government ’ s objection as to the exhaustion of domestic remedies.

(b) The applicant ’ s complaint concerning the reversal of his earlier discharge

In relation to the second head of the applicant ’ s complaint, the Court observes that where there has been such prejudice caused to an applicant by the delay in proceedings , that it interferes with his or her right to a fair trial in some manner that cannot otherwise be remedied, then a stay of proceedings could be appropriate. The domestic courts would be better placed than this Court to ascertain, within the limits of their discretion, whether other possible remedies, like the way in which the evidence is approached or the mitigation of any sentence imposed, would be appropriate in the light of the circumstances of a case. Any right to a discontinuation of criminal proceedings after long delays would only arise in very exceptional circumstances (see X v Federal Republic of Germany , no. 8182/78, § 5 , 16 October 1980, 25 DR 142). Article 6 § 1of the Convention does not require that in the event of excessively lengthy criminal proceedings an accused should be discharged or that the proceedings should be stayed.

In the circumstances of the present case, where there has been no allegation that the length of the proceedings had any impact on their fairness, the Court sees no reason to question the appropriateness of the means chosen by the domestic courts to remedy the protracted length. Hence, the decision for retrial did not impair the fairness of the proceedings taken as a whole.

As for the applicant ’ s argument concerning double jeopardy, the Court reiterates that the principle of ne bis in idem is embodied solely in Article 4 of Protocol No. 7 (see, inter alia , Ponsetti and Chesnel v. France ((dec.), nos. 36855/97 and 41731/98, ECHR 1999 ‑ VI) . The Court will therefore examine the complaint under that provision.

Accordingly, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Article 4 of Protocol No. 7 to the Convention

1. The applicant ’ s submissions

The applicant complained that the decision of the Supreme Court to order the Assize Court to re-hear his case, notwithstanding the discharge of the case by the Assize Court on 24 October 2003, breached Article 4 § 1 of Protocol No. 7, which reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.”

2. The Court ’ s assessment

The Court reiterates that the aim of this provision is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see Gradinger v. Austria , judgment of 23 October 1995, Series A no. 328 ‑ C, p. 65 , § 53). In its assessment the Court will first determine which elements of this provision are to be found in the proceedings under consideration, and will have regard to, inter alia , whether there was a “final” decision (see Nikitin v. Russia , no. 50178/99, § 36 , ECHR 2004 ‑ ...). According to the Explanatory Report to Protocol No. 7 to the Convention, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a decision is final if, according to the traditional expression, it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them (see Nikitin v. Russia , no. 50178/99, § 37 , ECHR 2004 ‑ ...).

The Court observes that the judgment of the Assize Court , by which the discharge of the applicant was ordered, was not final but remained subject to the right of the prosecution to contest it by lodging an appeal before the Supreme Court. The prosecution did lodge such an appeal, which was in fact successful, leading to the setting aside of the decision of the Assize Court . Hence, Article 4 of Protocol No. 7 has no application to the facts of the present case.

Accordingly, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Article 13 of the Convention

The applicant complained of a lack of an effective remedy within the meaning of Article 13 of the Convention in respect of the excessive length of the proceedings. This provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v . the United Kingdom , judgment of 27 April 1988 , Series A no . 131 , p. 23, § 52) . The applicant does not have an arguable claim in respect of any of his complaints and, therefore, Article 13 is not applicable. It follows that the corresponding complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President