THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50516/99 by Kostas GEORGIADIS against Cyprus

The European Court of Human Rights ( Third Section) , sitting on 10 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 19 July 1999 and registered on 24 August 1999,

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 is a Cypriot national , born in 1936 and living in Nicosia. He is represented before the Court by Mrs E. Vrahimi, a lawyer practising in Nicosia.

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

On 9 December 1992 a criminal action was filed against the applicant and two other defendants with the Nicosia District Court. The applicant was charged with the offences of forging official documents, circulating forged documents, fraudulently avoiding customs duties and corrupting a public officer. The Charge Sheet contained 48 charges but 28 were withdrawn at the close of the prosecution case. The witness list attached to the Charge Sheet contained 61 names and was amended to add another three, although the actual number of witnesses ultimately called was 37.

On 18 January 1993 the lawyer of one of the co-accused of the applicant asked for an adjournment of the case so that he could study the file and advise his client.

The applicant refused to enter a plea to the charges and asked for an adjournment until 28 January 1993, which was granted. On that date, the applicant’s lawyer (Mr Triantafyllides) asked for another adjournment and informed the District Court that he would be abroad between 16 and 22 February 1993. The Attorney General informed the District Court that he would also be away between 22 and 28 February 1993. The hearing was set down for hearing on 2 March 1993 and then adjourned until 23 March 1993 at the request of the lawyer (Mr Clerides) of another defendant.

On 23 March 1993 Mr Clerides submitted a preliminary objection which concerned the discretion of Attorney General to prefer a Charge Sheet in accordance with the Criminal Code. The trial judge dismissed the objection on 28 May 1993 and set down the hearing for 29 September 1993.

On 5 July 1993 the accused asked the District Court to reserve the question of law for the Supreme Court as to whether the Attorney General had a discretion to launch criminal proceedings in such a case. The Attorney General objected to that request. This resulted in the application being set down for a hearing and four appearances being made before the District Court granted the request (10, 16 and 24 June and 1 July 1993). On 18 November 1993 the Supreme Court held that the fact that the investigations were carried out by the Customs Office did not prevent the Attorney General from preferring the Charge Sheet.

Following this decision, the accused entered a plea of “not guilty”.

The case was referred back to the District Court and the hearing was listed for 11 March 1994. On that date the applicant’s co-accused invited the District Court to postpone the hearing until the completion of a hearing in criminal proceedings no. 21341/92, to which all defendants were parties. The District Court granted the request and adjourned the examination of the case until 8 June 1994. However, as proceedings no. 21341/92 had not been completed on that date (they were concluded on 18 January 1995), the hearing was further adjourned until 26 October 1994 and then until 3 February 1995 (because the Attorney General was otherwise engaged before the Supreme Court), 8 May 1995 (because witnesses for the prosecution were unavailable) and 30 October 1995.

On 30 October 1995 the lawyers for all the defendants submitted a preliminary objection as regards the competence of a newly appointed judge, who replaced the judge to whom the case was initially assigned and who had in the meantime retired. The objection was dismissed on 6 November 1995 and the hearing set down for 4 December 1995.

The hearing started on 4 December 1995 and continued on 5 and 11 December 1995. On that date the lawyer of one of the defendants objected to the submission of a document and the District Court reserved its ruling for 18 December 1995. The hearing continued on 21 December 1995, 12 January 1996, 18 January 1996, 1 February 1996, 5-6 February 1996, 8 March 1996 and 11-13 March 1996.

On 15 March 1996 the applicant’s lawyer made an interlocutory application requesting the return of some of the applicant’s documents which had been confiscated during the investigation. The hearing on that application started on 22 March 1996 and continued on 27 March 1996. It was further scheduled to continue on 3 April 1996, but the lawyer of a co ‑ defendant asked for an adjournment. On 29 April 1996 the District Court dismissed the application.

On 4 June 1996 the judge informed the parties that he had been appointed to the District Court of Paphos. Since it was impossible to conclude the case before his transfer, the Attorney General having informed the court that he intended to present a further 60 witnesses, the case was adjourned to be tried afresh before a new judge.

On 4 July 1996 the case was put before another judge in order to set a date of the re-hearing. The new judge fixed the hearing for 16 September 1996, but some days before that date he informed the President of the District District Court that he would be unable to meet that schedule due to the workload of the District Court. As a result, the President assigned the case to another judge.

On 16 September 1996 all parties appeared before the District Court and requested that the case be adjourned until November because of a number of other engagements of all counsel, including the Attorney General who was to be away from Cyprus between 22 September and 3 October 1996, and the applicant had a trip scheduled to the Far East. On 4 November 1996, when the hearing was to start, the applicant’s lawyer alleged that, because of the time which had elapsed between the initiation of the proceedings and the time of the hearing, the proceedings should be struck out because their continuation would contravene Article 30 § 2 of the Constitution. On 14 November 1996 the District Court dismissed the applicant’s objection as follows:

“It is after the completion of the hearing that the results of the delay are examined, which takes the question as to what can be regarded as reasonable at the end of the hearing. The results of the delay constitute a matter which is accounted for when punishment is imposed.”

On 15 November 1996 the District Court dismissed another request by the defendants to adjourn the hearing. On 21 November 1996 the hearing was again adjourned until 21 January 1997 because the lawyer of one of the co ‑ defendants contested the validity of the accused’s testimony. On 24 January 1997 the lawyer of another of the co-defendants asked for a further adjournment, because he aleady had an unrelated hearing before the Assize Court and because a second “trial within a trial” should be conducted to determine the validity of the testimony of that co-defendant. On 24 and 29 January the same lawyer reiterated the request.

The hearing continued on 6, 12 and 17 February 1997. On 18, 19, 24 and 25 February 1997 the District Court adjourned the hearing on the request of the lawyer of one of the accused, and on 4, 5 and 6 March 1997 further adjournments were granted on the request of the Attorney General. The hearing continued on various dates in March and April 1997.

On 10 April 1997 the lawyer of one of the co-defendants invited the District Court to reserve a question of law on the admissibility of two documents. As the court dismissed the application, the lawyer asked for permission to withdraw from the case. However, the lawyer changed his mind and the hearing continued on 16, 17 and 22 April 1997 and then on 6, 13 to 15, 17 and 19 May 1997. It also continued on 3 to 5, 9, 18 and 20 June 1997, 24, 28 and 29 July, 5 to 6 and 11 to 13 August 1997 and 23 September 1997. It was adjourned on 7 to 8 May, 11 June, 12 August and 29 to 30 September 1997 of the court’s own motion.

On 24 September 1997 the judge informed the accused that he had been appointed to the Assize Court and that the case would have to continue outside normal working hours. He asked for the co-operation of all parties to the proceedings.

On 1 to 5, 8 to 9 and 25 to 26 September 1997, the hearing was adjourned at the request of the Attorney General.

The hearing continued on 2 and 3 October 1997, but was adjourned on 8, 14 and 23 October 1997 of the court’s own motion.

On 4 and 9 December 1997 it was adjourned at the request of the lawyer of one of the accused.

The hearing continued on 22, 23 and 29 December 1997, on 7, 14 and 21 January 1998, on 17 and 26 February 1998, on 26 March 1998, on 16 April 1998 and on 8 and 11 May 1998. The court reserved its decision for 11 June 1998.

The District Court delivered its judgment on 25 June 1998. It concluded that there was no prima facie case for any of the accused to answer.

Within fourteen days of that judgment, the Attorney General lodged an appeal, but on 21 January 1999 he withdrew it.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings instituted against him.

THE LAW

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

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government first maintain that the case was very complex. The complexity is evident from the Charge Sheet which contained 48 counts, and from the number of witnesses proposed by the prosecution - 64 in all. There were also three accused, represented by three different lawyers, each one presenting different objections at different stages of the proceedings.

The Government submit that the re-hearing of the case following the change of three trial judges was unavoidable, by virtue of the case-law of the Supreme Court. The judicial authorities made every effort to set the case down for trial before the new judge and expedite the commencement of the hearing. Even if the change of these judges had not interfered with the progress of the case, the overall duration of the proceedings would not have been significantly shorter.

The Government further claim that the applicant’s conduct, as well as that of the co-accused with whom the applicant was in total agreement, contributed substantially to the overall length of the proceedings. The delays imputable to the applicant arise from the following:

- all the accused refused for almost a year to enter a plea to the charges and it was only after the decision of the Supreme Court on 18 November 1993 that they pleaded not guilty;

- all the accused agreed that the hearing should be postponed until case no. 28410/92, in which only one of them was a party, was concluded and that delayed the proceedings for one year and six months;

- all the accused objected to the competence of the newly appointed judge in October 1995;

- the applicant’s request for the return of certain personal documents;

- the adjournment of 16 September 1996 and the absence abroad of the applicant from 18 September to 25 October 1996;

- the objections of the applicant’s co-accused as to the validity of their testimonies on 21 November 1996 and 23 January 1997;

- the adjournments of 18, 19, 24 and 25 February 1997 and of 21 May 1997; and

- the objection of 13 March 1997.

The applicant contends that the Government’s summary of the facts of the case does not give a fair and accurate account of the proceedings; the summary is riddled with serious factual errors, with selective references to facts of little or no significance.

Except for two short adjournments requested by the applicant’s co ‑ accused and by the applicant himself, at least 43 scheduled hearings were cancelled or adjourned. The Attorney General was wholly or jointly responsible for 15 of them. Another 12 adjournments were decided by the District Court of its own motion mostly because it was engaged in other business. On only 5 occasions was an adjournment granted on the sole request of the defence. A number of other adjournments were granted, the exact reason for which cannot be ascertained because the relevant transcript is not available.

The applicant further submits that, of all the witnesses called, only the evidence of thirteen of them was specifically considered and referred to in the judgment of the District Court. Most of the testimonies were of a merely formal nature: in most cases, witnesses were required to identify a single document or their own signatures or writing on a document. The volume of the evidence presented is an indication not of the complexity of the case, but of its inherent weakness, which resulted in the indiscriminate presentation on behalf of the Attorney General of large volumes of circumstantial evidence of no significance, in an attempt to found a conviction by some means or other. None of the legal issues relating to the offences with which the applicant was charged could in any way be described as complex.

Finally, the withdrawal of the Attorney General’s appeal raises strong inferences that the appeal was filed without due consideration of its possible merits. By doing so, the Attorney-General proceeded without due regard to the interests of the applicant and delayed the proceedings for seven more months.

The Court notes that the proceedings began on 9 December 1992 when a criminal action was filed against the applicant, and ended on 21 January 1999 when the Attorney General withdrew his appeal against the applicant’s acquittal. They thus lasted six years, one month and twelve days over two instances.

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 this 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, without prejudging the merits of the case.

S. Dollé J.-P. COSTA Registrar President