THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62242/00 by Andreas GREGORIOU against Cyprus

The European Court of Human Rights ( Third Section) , sitting on 18 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Mrs H.S. Greve , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 18 May 2001 and registered on 26 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andreas Gregoriou , is a Cypriot national, born in 1928 and living in Nicosia.

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

1. Background to the case

The applicant was recruited in September 1946 by the Bank of Cyprus. He retired from the Bank on 31 December 1988. To enhance his career prospects, he continued his studies while working, studying through distance learning programmes run by British colleges. In 1960 he was granted a two-year unpaid educational leave to study in London. When he returned he was promoted deputy to the Chief Inspector with the prospect of succeeding him. In 1963 the Government established the Central Bank (the State issuing Bank), which published its vacant posts. Interested in one of the four managerial posts, the applicant applied by contacting the Bank’s Governor who offered him the post of Banking Operations.

On hearing about the Central Bank’s offer, the applicant’s Bank, in 1964, offered him orally the post of Chief Inspector on condition that he follow a six-month training course in London. When the applicant returned from his training, the Bank promoted him to the lower post of Head of Department. In 1967 the Bank amended its Conditions of Service. The applicant was kept in the same grade. In the same year the applicant was transferred on promotion to take charge of the Paphos Branch. In 1969 he was again promoted (but not to the allegedly agreed post) and in 1970 he was transferred back to the Head Office, where he alleges he was given various duties below managerial status.

The applicant alleges that in 1983 the Chairman of the Bank in the course of a private meeting stated that the reason for not promoting him to the post agreed in 1964 was that the Board of Directors had received from a group of shareholders a number of anonymous letters which criticised it for bad administration. The Board suspected that these letters had been sent by the applicant. The applicant further alleges that, following this information, he tried hard for almost two years to convince the Bank of his innocence, but to no avail.

The applicant alleges that in 1987, nineteen months before his retirement, the Bank offered him 32,000 Cypriot pounds with a year’s increment in his salary and threatened him that if he did not accept it, the Bank would demote him from Sub-Manager to Head of Department. The applicant refused the offer.

In 1988 the Disciplinary Committee of the Bank ordered the applicant’s dismissal with stay of execution.

Considering that the Bank had not respected its commitment to appoint him to a senior management position, the applicant instituted proceedings before the District Court of Nicosia claiming damages.

2. The proceedings before the District Court of Nicosia

The applicant lodged an action for damages (n° 7439/85) with the District Court of Nicosia on 12 August 1985. On 30 July 1988 the District Court dismissed the action. The applicant alleges that the District Court relied on some documents taken from his personal employment file, which later turned out to be forged.

The applicant appealed against this judgment to the Supreme Court. He alleged a violation of Article 30 of the Constitution and of Article 6 of the Convention. He maintained that although he was ill and had produced a doctor’s certificate to this effect, the District Court did not adjourn the hearing. The Supreme Court quashed the judgment and ordered a re-trial by another District Court.

The re-trial proceedings in civil action n° 7439/85 began in September 1992 and ended on 1 June 1995. Judgment was reserved.

During the proceedings the applicant applied to the defendant Bank in order to obtain certain documents from his employment personal file. As the Bank refused the request, the applicant applied formally to the District Court, which issued an order for discovery of documents.

The applicant alleges that the documents submitted by the Bank had been “scandalously” forged. However, the court did not admit them as exhibits in the proceedings on the ground that they were irrelevant.

On 6 April 1994 the applicant reported the matter of the forged documents to the police. On 7 February 1996 the police informed him that they had not found any evidence which would justify the institution of criminal proceedings. As a result, the applicant lodged a complaint against the Bank and three of its managers. On 19 January 1998 the District Court dismissed the applicant’s action for lack of prima facie evidence. The Appeal Court rejected the applicant’s appeal against this judgment.

In the meantime, the District Court did not deliver judgment in civil action n° 7439/85 because the presiding judged had retired. As a result, the Supreme Court ordered a fresh hearing, for the third time, before a different District Court. The hearing began in February 1996 but was discontinued because the presiding judge was promoted to the Supreme Court.

The applicant submitted 154 documents and 19 witnesses on his behalf were called. The defendant opted not to adduce any evidence.

The fourth re-trial began in July 1996. On 20 March 1997 the District Court dismissed the applicant’s civil action giving the following reasons:

“The defendants opted not to adduce any evidence, whereas the plaintiff lodged a large number of exhibits ....

The vital gap in the plaintiff’s case is that he did not offer any evidence in connection with the alleged damages he had suffered. Therefore, we do not accept the plaintiff’s allegation that the litigants had proceeded to a binding agreement between them in 1964. Even if we accepted that contractual behaviour has been established on the part of the defendant Bank or any other form of behaviour which would create an obligation to pay compensation, the plaintiff has not produced evidence to prove in any way that he sustained the alleged damages ....

Nor does any such legal relation ensue from the large number of exhibits which we have examined. What ensues from all the evidence adduced is that the plaintiff opted not to go to the Central Bank but to stay with his employers, the Bank of Cyprus, in the expectation of promotion, but surely without any binding undertaking on the part of the defendant bank ...”

2. The proceedings before the Supreme Court

On 15 April 1997 the applicant appealed to the Supreme Court. The hearing began on 22 September 1998 and was terminated on 24 March 1999. Judgment was reserved. However, as one of the judges resigned the appeal was taken up by another bench of the Supreme Court, which re-heard the case and delivered judgment on 29 November 1999.

As regards the alleged violation of Article 6 of the Convention, the Supreme Court noted the following:

“...We should add that during the course of the trial the appellant amended his Statement of Claims four times ... in the end he complained because he was not given the chance to amend it during the last hearing, at the end of 1996... [Supreme Court indicates applicant’s claims] The above are the main claims of the appellant, the enumeration of which does not exhaust the other matters expounded in his Statement of Claims, in which his emotional burden is demonstratively expressed...

Evidence was adduced only by the appellant. Not only were some 154 exhibits lodged by him by consent, but he also testified himself along with some other witnesses, whereas the defendants did not adduce any evidence whatsoever ... .

The District Court concluded that the evidence did not substantiate any cause of action, likewise as regards the remaining issues. The appeal comprises many other grounds. It refers to the court’s procedural errors, in that it omitted to make a detailed and reasoned evaluation of every item of oral or written evidence, thus resulting in a mistaken diagnosis of the issues that had been put forward. On various other grounds the court was blamed for bringing about an unfair trial and taking a mistaken approach to the whole case.

We listened attentively to the applicant, particularly in view of the fact that he was not represented by a lawyer. We exhausted every limit to help him in putting forward to the court everything he considered vital for his appeal ...

As regards the ground relating to the court’s procedural errors ... The first one refers to the dismissal of the appellant’s application of 11 October 1996 for staying the proceedings so that his private criminal action ... be tried prior to his outstanding civil action...  The dismissal was obviously correct, because the continuation of the old civil action could not be subject to the trial of his private criminal action, the outcome of which could not, in any case, have any direct practical significance.

The second one refers to the appellant’s view that the court erred because it did not accept his request that his exhibits be read... Let it be noted that 138 of his exhibits had been lodged at the beginning of the previous but not completed proceedings. So, these exhibits were lodged again en masse with the present court. Later, more exhibits were lodged whose number totalled 154. There had been no request for them to be read. In the ... order it is provided that “any document offered in evidence and not objected to shall be put in and read, or taken as read by consent”. Therefore, it is inferred that they were not read because of consent...

The appellant asked for his exhibits to be read for the first time after he had closed his case and the other side had stated that it would not adduce evidence and the case was at the stage of addresses. The court, when it recalled how the situation with the exhibits had developed – by consent and without asking for them to be read – , it remarked that both sides had the right to refer to any points they wished in their addresses and, at the same time, it assured them that it would go through each one before delivering judgment.

The third ground was that the court erred because the plaintiff’s expert witness was not admitted to testify ....The court ruled out the evidence as general and theoretical and as having no connection with the issues at hand.

On the fourth ground, the plaintiff submitted that the court misinterpreted the hearsay rule of evidence. This ground does not stand up either. Finally, he submitted that the court fell into a few other errors. These errrors were connected with issues that had not been properly put or completely lacked importance and consequently do not deserve to occupy the court...”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings before the District Court of Nicosia and the Supreme Court.

2. The applicant complains under Article 6 § 1 of the Convention about the fairness of these proceedings.

THE LAW

1. The applicant alleges a violation of Article 6 § 1 of the Convention, which, in so far as relevant, reads:

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

The applicant complains about the length of the proceedings which lasted 14 years, three months and 15 days.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant alleges a violation of Article 6 § 1 of the Convention, which, in so far as relevant, reads:

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

The applicant submits that he has been deprived of a fair and adversarial hearing before the competent domestic courts. In particular, he claims that the District Court refused to allow the reading at the hearing of the applicant’s exhibits and to allow the applicant’s expert witness to testify on the applicant’s annual appraisal reports. Furthermore, the District Court ignored the evidence given by some of his key witnesses, overlooked the essence of the testimony of others and failed to distinguish the direct evidence from the hearsay evidence. It further denied the applicant leave to amend his Statement of Claims in order to include new items of evidence which were disclosed in the course of the proceedings. Furthermore, the District Court wrongly dismissed as irrelevant the applicant’s application to stay the proceedings in his civil action pending the outcome of his criminal action. Finally, it failed to consider the persistent violation by the defendant Bank of its own Conditions of Service, which constituted a binding agreement with its employees as regards promotions.

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( García Ruiz v. Spain [GC] n°30544/96, § 28, CEDH 1999-I).

In the light of the above considerations, the Court notes that the applicant had the benefit of adversarial proceedings and was able to submit the arguments he considered relevant to his case. In particular, the Court notes that the applicant submitted 154 documents to the District Court and that 19 witnesses on his behalf were heard, whereas the defendants opted not to adduce any evidence. As regards the documentary evidence, it transpires from the Supreme Court’s judgment that the parties agreed that this evidence would be admitted en masse in order to save time and that the applicant asked for it to be read out for the first time at the stage of the addresses to the court; moreover, the District Court invited the parties to refer to any part of this evidence which they considered decisive and assured them that it would examine each item before delivering judgment. As regards the refusal of the District Court to hear the applicant’s expert witness, the Court notes that the District Court considered that his testimony would be of no relevance for the examination of the case. Finally, as regards the refusal to allow the applicant to amend his Statement of Claims, the Court notes that the applicant had already modified it four times and the essence of his claims was clearly identified, as indicated in the Supreme Court’s judgment.

Accordingly, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of Article 6 § 1 of the Convention.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint about the length of the proceedings;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. COSTA Registrar President