SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68448/01 by Stelios LERIOS against Cyprus

The European Court of Human Rights (Second Section), sitting on 2 December 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 5 April 2001,

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 Stelios Lerios , is a Cypriot national, who was born in 1954 and lives in Paphos . He is represented before the Court by Dr C.P. Clerides , a lawyer practising in Nicosia.

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

A. Background to the case

The applicant is a gynaecologist. On 10 October 1994, a pregnant woman, Mrs A. Georgiou, died at the hospital of Paphos after being transferred there from a private clinic. The applicant, who was her medical practitioner, had taken the decision to transfer her to hospital because he had been unable to detect at the clinic the cause of a haemorrhage from which she was suffering.

B. Proceedings before the District Court of Paphos

On 7 August 1995 the administrators of the estate of the deceased lodged an action against the applicant before the District Court of Paphos . While the applicant entered his appearance to the writ of summons on 4 September 1995, the plaintiffs’ statement of claim was not filed and delivered to the applicant within the ten day time-limit prescribed by Order 20 r.1 of the Civil Procedure Rules. As a result, the applicant applied on 2 October 1995 to the court under Order 26 r.1 of the Rules to dismiss the action for want of prosecution on the basis of the plaintiffs’ failure to deliver their statement of claim within the required time.

On 18 December 1995 the plaintiffs filed and delivered their statement of claim and the applicant withdrew his application claiming costs. The court thereupon dismissed the application under its discretionary power provided by Order 26 r.1, ordering the plaintiffs to pay the applicant’s costs. Consequently, the applicant filed and delivered his statement of defence on 22 December 1995, within the ensuing 14-day time-limit in accordance with Rules.

On 9 January 1996, the applicant filed an application requesting that a preliminary point of law be examined before the hearing of the action. In particular, the applicant claimed that the action ought to have been dismissed on the ground that another action, that had been filed earlier and concerned the death of the same person, was also pending before the same District Court. Initially, the plaintiffs were granted time to file an objection to the application but when they subsequently withdrew the action they had lodged previously, the applicant proceeded on 22 May 1996 to withdraw his own application claiming his costs. Accordingly, the court went on to dismiss the application, awarding the applicant his costs.

On 22 August 1996 the plaintiffs applied to the court to fix the case for mention or hearing. Subsequently, on 5 September 1996 the District Court fixed the action for mention for 27 September 1996 and then for hearing for 5 December 1996. However, on that date the court adjourned the hearing until 28 February 1997, at the request of the plaintiffs in view of the fact that one of their witnesses was unable to attend and testify for their case on that particular date. The court granted the adjournment after taking into account that the applicant’s lawyer did not object to the request and noting that the parties should be prepared to continue their case on the new date set.

The hearing commenced on 28 February 1997 and continued on 5, 11 and 26 March 1997, 22 27, 28 and 29 May 1997, and 5 and 11 June 1997. On the latter date, following a joint request by the parties’ lawyers, the District Court gave directions for the submission of written addresses, first by the applicant’s lawyer within fourteen days and then by the plaintiffs’ lawyers within the subsequent fourteen days. Overall, there were only two short adjournments of the hearing, once on 10 April 1997 (for one month since the court had to continue the examination of witnesses in another action) and once on 6 May 1997 (for fifteen days at the request of the plaintiffs’ lawyers). The applicant did not object to these requests.

The parties’ lawyers addressed the court on 17 July 1997 and, on 9 October 1997, the court delivered its judgment. It held that the applicant was liable for medical negligence causing death, and ordered him to pay by way of damages an amount of 46,200 Cypriot pounds to the deceased’s dependants, as well as one third of the plaintiffs’ costs.

C. Proceedings before the Supreme Court

On 19 November 1997 the applicant appealed to the Supreme Court against the District Court’s decision. He based his appeal on a total of 31 grounds pertaining to the appraisal of the evidence given at first instance as well as the damages awarded. In this connection, the applicant states that on 24 November 1997 he applied to the Supreme Court to have the appeal fixed for hearing (and provides a copy of this application) whereas the Government state that none of the parties made such an application and that on 10 September 1998 the Supreme Court fixed the appeal, ex proprio motu , for pre-trial directions for 27 October 1998.

On 27 October 1998, the Supreme Court gave directions to the parties to file the outlines of their addresses. Accordingly, the applicant filed the outline of his address on 8 December 1998. On 25 January 1999 the Supreme Court fixed the hearing for 22 March 1999. In the meantime, the plaintiffs asked for an extension of 45 days in order to study the applicant’s voluminous outline before submitting their own address. This was granted and they filed their address on 18 March 1999. On 14 June 1999 the parties were notified by the registrar that the appeal was fixed for a hearing for 27 September 1999. On that date the hearing was adjourned following a request by the plaintiffs’ lawyer who, unexpectedly, had to go abroad, and also taking into consideration the position of the applicant’s lawyer that it would be unreasonable to raise an objection to the requested adjournment. On 15 November 1999 the parties were notified by the court that the hearing would take place on 21 January 2000. Finally, after an adjournment decided ex officio by the court on 21 January 2000, the hearing was held on 25 January 2000.

On 14 July 2000, the Supreme Court partially upheld the appeal and ordered a new trial as well as a reduction in the amount of damages set by the District Court.

D. Retrial proceedings

On 5 September 2000 the case was assigned to a Senior District Judge who subsequently fixed it for directions on 27 September 2000 and then for 26 October 2000. On that date, with the parties’ consent, the hearing was set for 1 December 2000. However, on 3 November 2000, the plaintiffs’ lawyers applied for an adjournment of the hearing since they had hearings in other cases on 1 December 2000 and, also, certain of their key witnesses could not be present. The applicant proceeded to file a written objection dated 25 November 2000. On 29 November 2000 the Supreme Court issued an interim decision upholding the plaintiffs’ application. Accordingly, the hearing was adjourned and was fixed for 8 and 12 January 2001.

On 8 January 2001, the parties’ lawyers informed the court that they had reached an agreement settling their dispute. In particular, taking into account the circumstances of the case, they agreed on an ex gratia basis that the applicant would pay the plaintiffs CYP 23,000 plus CYP 750 for legal and expert costs. Accordingly, the Supreme Court issued a judgment against the applicant ordering him to pay the above amounts to the plaintiffs, with a stay of execution of the judgment for 12 months on condition that the applicant paid the above amounts by monthly instalments of CYP 2,000 as from 1 February 2001.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the excessive length of the proceedings. Furthermore, he complains about the lack of an effective remedy with regard to their protracted length, contrary to Article 13 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 6 § 1 of the Convention, which insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submit that the length of the relevant proceedings, amounting to a period of approximately 5 years and 5 months, was not unreasonable and that there was no excessive delay in their determination that can be attributed to the judicial authorities and the Government. During this period, a judgment was delivered by the District Court on 9 October 1997, there was a hearing of an appeal filed by the applicant, a judgment was delivered by the Supreme Court on appeal on 14 July 2000 and, lastly, a date was set for the de novo hearing of the case following the initiation of retrial proceedings. In the Government’s view, the national courts, during the above period, examined the case with reasonable expedition and did not omit any measures which might reasonably have been expected to be adopted by them in ensuring the prompt determination of the proceedings.

The Government contend that during a period of about 16 months, from the date of the filing of the action on 7 August 1995 until the commencement of the hearing on 28 February 1997, there was no delay in the proceedings attributable to the judicial authorities. On one hand, the Government argue, the applicant used the procedural means available to him such as filing an application for dismissal of the action for want of prosecution when the plaintiffs failed to file their statement of claim. On the other hand, the court dealt with this application as required by the Civil Procedure Rules, penalising at the same time the plaintiffs for their default by ordering them to pay the costs of the application.

Similarly, concerning the period of about 2 years and 7 months for the determination of the appeal, the Government submit that it was reasonable in the light of the particular complexity of the case. In this connection they point out that the applicant raised a total of 31 grounds of appeal, challenging facts and legal issues as erroneous. Thus, the proceedings involved voluminous and complicated expert medical testimony adduced on both sides at the hearing at first instance. In view of this, they aver that it was not unreasonable for the Supreme Court, in the interests of justice, to grant an extension of 45 days to the plaintiffs for preparing the outline of their address, and to which the applicant did not object. Furthermore, the Government state that within this period only one adjournment of the hearing was granted on the basis of a request by the plaintiffs, on 27 September 1999, to which the applicant once again did not object. In fact, they note that the appeal was fixed for hearing on 21 January 2000. In addition, they contend that the record discloses that the court reacted quickly on 10 September 1998 when neither the applicant nor the plaintiffs had availed themselves of their procedural right under the Rules to apply to the court to fix the appeal for pre-trial directions.

As regards the period of about 6 months from the date of delivery of the judgment on appeal on 14 July 2000 until the issue of the judgment by consent of the parties in the retrial proceedings on 8 January 2001, the Government claim that they are not responsible for the prolongation of the proceedings which was inevitable following the vindication of the applicant on appeal and the ensuing new trial that could exonerate him from liability.

The Government submit that they should not be held responsible for the delay in the proceedings which was mainly due to the tardiness of the parties in filing applications or for requesting or consenting to adjournments. For instance, following the dismissal by the District Court of the applicant’s application in relation to a preliminary point of law on 22 May 1996, the parties did not apply to the court to have the case fixed until 22 August 1996 when the plaintiffs did so. They also note that the courts did not always accept the dates proposed by the parties when requesting adjournments. For example, the Supreme Court’s record of 29 November 2000 discloses that, although the parties’ lawyers agreed on fixing hearing dates in mid and late February 2001, the court gave alternative dates in early January 2001 and did not accept the later dates in the same month proposed by the applicant’s lawyer. Indeed, overall there were very few adjournments of the hearing, which were not long and were granted at the request of one of the parties, without objection by the other. They state that the party to blame was always penalised with costs, and every effort was made by the courts to discourage unwarranted adjournments.

The applicant disputes the arguments of the respondent Government and maintains that the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. He notes that the domestic courts should have given priority to the case due to its nature, the publicity given to it, the small locality where the applicant is residing and practising, and the detrimental effects of prolonged proceedings of this nature to his professional reputation.

The applicant submits that the hearing commenced on 28 February 1997, that is, approximately 14 months after the case was ready for a hearing. He maintains that had the case been tried on a day-in day-out basis, as provided for example by the Supreme Court’s practice direction, the proceedings could have been completed within a maximum of one to two months.

Moreover, the applicant contends that the appeal was filed duly on 19 November 1997 within the prescribed time-limit of 42 days and his application to fix the appeal was filed shortly afterwards on 24 November 1997. However, the case was fixed for directions before the Supreme Court for the first time on 27 October 1998, that is, approximately one year afterwards. Furthermore, although the case was complete and ready for hearing by 18 March 1999, the hearing was fixed for the 27 September 1999 and then adjourned until 21 January 2000. Thus, the applicant argues that the above period of inactivity, amounting to almost 10 months, was unduly long.

Following the issue of the judgment on 14 July 2000 and the retrial order, 6 months after the completion of the hearing, a period of 3 months elapsed before a date was fixed for directions for the retrial before the District Court. While the hearing was set for 1 December 2000, the court granted an adjournment following a request by the plaintiffs’ lawyer (on 3 November 2000), despite the applicant’s objection stressing the prolonged and pressing nature of the proceedings. Finally, the case was set for hearing of January 2001, that is, with a delay of 6 months subsequent to the judgment on appeal.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

2. The applicant also complains a lack of an effective remedy with regard to the allegedly excessive length of the proceedings before the domestic courts, contrary to Article 13 of the Convention, which 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 Government submit that the applicant’s complaint under Article 6 § 1 of the Convention could have been raised before the domestic courts. In particular, the Government claim that the applicant could have filed a civil action in the domestic courts against the Government, alleging a violation of his right under Article 30 of the Cypriot Constitution to have his civil rights and obligations determined within a reasonable time and claiming damages. In this connection, the Government state that the Cypriot Constitution guarantees the right to a fair hearing (Articles 30 § 2). Protection of this right is effectively secured under Article 35 of the Cypriot Constitution which imposes an obligation on inter alia the judicial authorities to ensure the efficient application of all fundamental rights and liberties guaranteed under the Constitution. They also point out that, in accordance with Article 169 § 3 of the Constitution, the Convention forms part of the domestic legal order and supersedes domestic legislation. They note that, if the applicant had brought such an action successfully, he would have been awarded compensation in respect of a violation of his rights protected under the Constitution without needing to prove material damage.

In support of their arguments, the Government rely on the judgment of the Supreme Court in the case of Yiallourou v. Evgenios Nicolaou (8 May 2001, civil action no. 9931) finding a violation of the right to the plaintiff’s private life, as guaranteed by the Cypriot Constitution. The Government also rely on a statement of claim filed in the District Court of Nicosia (civil action no. 3216/02) on 8 April 2002 in which the plaintiffs complain of a violation of their right to a fair hearing under Article 30 of the Cypriot Constitution and Article 6 § 1 of the Convention, in that the proceedings concerning them were not determined within a reasonable time. They distinguish the instant application from the case of KudÅ‚a v. Poland ([GC], no. 30210/96, ECHR 2000 ‑ XI), in which the Polish Government did not identify a specific legal avenue to which the applicant could have had recourse in relation to his complaints, whereas, in the present case, there was a specific effective domestic remedy available to the applicant, within the meaning of Article 13 of the Convention and in line with the Court’s case-law.

The applicant disputes the arguments of the respondent Government and maintains that there is no effective domestic remedy available contrary to Article 13 of the Convention. He distinguishes the instant application from the case of Yiallourou v. Evgenios Nicolaou referred to by the Government, since the former was a civil action between private individuals and not between an individual and the State.  In relation to this he claims that, since his complaint is in effect directed against the Cypriot judicial authorities, it would not be appropriate for the latter to judge the issue themselves.

Furthermore, he contends that there is no specific legislative framework or specific civil procedure rules designed to guarantee the impartiality and independence of the body trying such complaints, ensuring their prompt and effective determination, as well as the provision of effective remedies. In this connection, he points out that no law has been enacted in accordance with the Constitution (Article 172) to regulate the liability of the Republic when wrongful acts or omissions causing damage are committed in the exercise, or purported exercise, of the duties of its officers or authorities. He also states that this provision is confined to issues falling within the scope of the laws of tort and contract and not, as demonstrated by the judgment of Yiallourou v. Evgenios Nicolaou , to violations of human rights. Finally, he argues that he raised the issue of a violation of Article 6 of the Convention before the District Court on 25 November 2000 when objecting to an adjournment of the retrial hearing, but to no avail.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa              Deputy Registrar President