THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53594/99 by ALITHIA PUBLISHING COMPANY and ALECOS CONSTANTINIDES against Cyprus

The European Court of Human Rights ( Third Section) , sitting on 6 December 2001 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , Mr A. Loizou , ad hoc judge , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 21 December 1999 and registered on 22 December 1999,

Having regard to the partial decision of 7 November 2000,

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

Having deliberated, decides as follows:

THE FACTS

The first applicant is a company registered in Cyprus which publishes the daily morning newspaper Alithia . The second applicant is the editor in chief of the newspaper. They a re represented before the Court by Mr A. Demetriades and Mr C. Pourgourides , lawyers practising in Nicosia.

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

On 22 October 1985, just before the 1986 elections, the first applicant published an article entitled “ The capon and self-esteem ‑ Short portrait of Mr Tassos Papadopoulos ‑ Archives, Gigolo, Computer and Specimen of writing ”, of which the second applicant was the author.

On 26 October 1985 Mr Papadopoulos filed a civil action for libel with the District Court of Nicosia. The applicants filed a memorandum of appearance to the writ on 5 November 1985. The plaintiff’s statement of claim, which by virtue of Order 20 Rule 1 of the Civil Procedure Rules, ought to have been filed within ten days after the appearance, was delivered to the applicants on 3 February 1988. Although on 6 November 1987 the District Court had fixed a time-limit of twenty-one days for the filing of the statement of claim, the plaintiff requested and obtained on 11 January 1988 an extension until 29 January 1988. On that date, as the statement of claim was not yet filed, the District Court did not fix the case anew, but gave instructions to the Registrar to bring the case before it, after 1 February 1988, in order to dismiss it for want of prosecution.

On 16 September 1988 and 17 January 1989 the applicants filed two similar applications whereby they sought to obtain an order of the court striking out or amending paragraph 8 of the plaintiff’s statement of claim, as tending to embarrass or delay the fair examination of the action or as being unnecessary or scandalous. The hearing of the applications was fixed for 7 November 1988, but on that date it was adjourned until 14 December 1988 at the request of both parties and then, ex officio , until 9 January 1989, when it was dismissed for want of prosecution. On 17 January 1989 the applicants filed a third similar application which was subsequently withdrawn on the date of the hearing on 21 April 1989, in the light of a statement made by the plaintiff’s lawyer.

On 31 May 1989 the applicants applied to the District Court for an adjournment of the time-limit to file their defence, on the ground that it had not been possible to do it in time owing to the numerous applications which were submitted in the action. An adjournment was granted until 7 June 1989 but the applicants did not file their defence until 12 September 1989.

On 15 February 1990 the applicants applied to the District Court to expedite proceedings. The court fixed the case for mention on 16 March 1990 and for hearing on 9 November 1990. On that date the hearing was adjourned ex officio until 21 March 1991 and 15 November 1991, and then until 28 May 1992 and 13 January 1993. On that last date the applicants failed to appear because the plaintiff’s lawyer had omitted to notify them of the date of the hearing.

On 21 June 1993 the hearing was adjourned again until 4 February 1994, owing to the lack of time by the court, and again until 16 September 1994, following a request from the applicants. On three occasions the hearing was adjourned ex officio : on 16 September 1994, 1 March 1995 and 18 September 1995 and, following a further request from the applicants, again on 12 January 1996.

The hearing commenced on 14 March 1996 and involved seven sessions: on 14 March 1996, 2 April 1996, 22 April 1996, 29 May 1996, 30 May 1996, 12 June 1996 and 13 June 1996. On 14 March 1996, at the end of the morning session, the lawyers of both parties declared that they were unable to continue in the afternoon or the following week due to other court engagements. The applicant’s lawyer refused to resume the hearing on 5 April 1996 because he had to appear before another court, and on 23 April 1996 because he was engaged in a pre-election meeting of his party. The hearing thus continued after the parliamentary elections held on 26 May 1996.

On 28 January 1997 the District Court delivered its judgment . It found that the applicants had committed libel and ordered them to pay the plaintiff 12,000 Cypriot pounds in damages.

The District Court rejected the applicants’ claim that the proceedings were null and void because they had exceeded a reasonable length. The District Court noted, on the one hand, that the plaintiff had delayed filing his claims, but, on the other hand, the applicants had not complained of this delay prior to the hearing.

On 27 February 1997 the applicants appealed to the Supreme Court. They relied on two grounds: the excessive length of the proceedings and the amount of the award. On 8 April 1997 the plaintiff filed a cross-appeal whereby he sought higher compensation.

The Supreme Court fixed the hearing on 22 December 1998 but on that date adjourned it until 12 May 1999.

On 22 July 1999 the Supreme Court rejected the applicants’ appeal and increased the award of damages to 20,000 Cypriot pounds.

As regards the length of the proceedings, the Supreme Court held that much of the delay was due to the applicants’ requests for adjournments. It acknowledged, however, that it took 28 months for the plaintiff to file his claims because of his frequent trips abroad, and that the District Court had adjourned the hearing several times for lack of time. In particular, the Supreme Court noted the following: on 16 September 1988 the applicants had invited the District Court to strike out part of the plaintiff’s claims but, as they did not appear for the hearing of that matter, the District Court rejected the application. The applicants then asked for an extension of the time-limit to file their observations, which were submitted on 12 September 1989. On 23 August 1991 the applicants’ lawyers withdrew, and on 11 November 1991 the new lawyer requested the District Court to adjourn the hearing because he was obliged to appear before another court. On 1 March 1995 the applicants’ lawyer was not present. On 13 September 1995 he asked for a new adjournment. Finally, the hearing started on 14 March 1996 and was completed on 13 June 1996. During that period, the applicants’ lawyer obtained two more adjournments.

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings before the domestic courts.

THE LAW

The applicants allege a violation of the “reasonable time” guaranteed by Article 6 § 1, 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 contend that the applicants failed to apply at any time after the expiry of the ten day period after their appearance in 1985 for an order requiring the plaintiff to submit his statement of claim within the time-limits prescribed by law. In particular, the applicants could have pressed for the filing of such a statement or have the action dismissed for want of prosecution. The filing of the statement of claim was the result of steps taken by the court and not by the applicants, who never objected to the plaintiff’s repeated requests for adjournments.

The Government stress that the applicants persisted in making three applications for an amendment of the plaintiff’s statement of claim which were ultimately withdrawn, but which caused several months of delay. It is clear that a period of almost four years, starting with the introduction of the action on 23 October 1985 and ending with the applicant’s defence on 12 September 1989, cannot be attributed to the judicial authorities. Following the close of the written pleadings, neither the applicants nor the plaintiff applied to the Registrar to fix the date of the hearing. Moreover, the applicants could have applied for the dismissal of the action for want of prosecution, invoking Article 30 § 2 of the Constitution and Article 6 § 1 of the Convention.

Over a period of about ten years from the commencement of the proceedings on 23 October 1985, and about seven years from 1 January 1989 (when the Convention entered into force with respect of Cyprus), until the date of the commencement of the hearing, only a delay of three years was attributable to the District Court. At no time did the applicants protest about the delay and there was no indication whatsoever, until 12 June 1996, the date of their lawyer’s final address to the court, that they were in a hurry to obtain a judgment . After the commencement of the hearing, and despite clear indications that the court disapproved of requests for adjournments, the applicants not only continued to lodge such requests but also failed twice to appear before the court.

As regards the proceedings before the Supreme Court, the Government submit that the delay was not excessive (the proceedings lasting but two years), and was due to the preparation of the transcript of proceedings before the District Court, which involved 280 pages of stenography.

Although the Government acknowledge that part of the delay was attributable to the first instance court, they contend that the applicants were primarily responsible for the length of the proceedings. Finally, the Government maintain that the nature of the case, proceedings for libel with a view to obtaining compensation, did not require special diligence by the courts on account of the possible consequences which the length of the proceedings could have had.

The applicants submit that they had to endure proceedings which took thirteen years and eight months to complete. Between 17 January 1989 and 16 March 1990, certain procedural matters had to be settled in order for the case to be fixed for hearing. From 9 November 1990 to 14 March 1996, when the hearing actually started, the case was adjourned twelve times, essentially because the District Court had no time or a particular judge was busy with another case. The applicants’ failure to appear on 9 January 1989 did not delay the proceedings for more than three months. The adjournment of 28 May 1992 was due to the fact that the judge was about to retire and it was left to the plaintiff’s lawyer to notify the applicants of the new date of the hearing; however, the former failed to do so. Considerable delay was caused before the Supreme Court because the District Court was unable to prepare the transcript of the case.

The applicants further point out that eight of the adjournments have not received any detailed explanation from the Government. The applicants stress that the Cypriot courts are overloaded and cannot cope with their workload, a matter for which only the Government is accountable.

The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application 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.

Vincent Berger G eorg Ress Registrar President