THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 47119/99 by Nikos SHACOLAS against Cyprus

The European Court of Human Rights (Third Section) , sitting on 3 April 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 4 January 1999 and registered on 26 March 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 1927 and living in Nicosia. He is represented before the Court by Mr G. Cacoyannis and Mr P. Ioannidis , lawyers practising in Limassol and Nicosia respectively.

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

The applicant, a businessman, is a defendant in action No. 747/86 instituted against him before the District Court of Nicosia on 23 January 1986 by the Federal Bank of Lebanon. The bank claims 598,729 US dollars plus compound interest (more than doubling the claim) which is allegedly owed by the applicant in his capacity as guarantor of a Greek company which has been liquidated. There were also two co-guarantors, one of whom is now deceased and the other very ill and old and his whereabouts are unknown. Neither the principal debtors nor the co-guarantors were included in the action as co-defendants.

The cause of action arose in 1976-1977. On 17 December 1997 the Federal Bank of Lebanon addressed a letter to the Bank of Cyprus Ltd in Nicosia, together with two bills of exchange, one for 465,915.82 US dollars and the other for 300,000 US dollars, with instructions that they be presented to the applicant for acceptance and payment. However, after the filing by the applicant of a separate action, No. 5746/77, the District Court of Nicosia declared the two bills “void ab initio and without any legal effect as they were never duly presented or signed or accepted by the [applicant]”.

On 29 November 1985 the plaintiffs filed in the District Court of Nicosia action No. 11078/85, by which they claimed against the applicant the same amounts of money later claimed in action No. 747/86. However, this action was discontinued and withdrawn by the plaintiffs on 9 January 1986.

On account of the Limitation of Actions Law, Cap. 115, the filing of action 747/86 would have been outside the limitation periods prescribed by the said law, but the Limitation of Actions (Suspension) Law 57/64 (enacted in 1964) suspended all such limitation periods.

The specially endorsed writ of summons (which included the Statement of Claim) was amended on the application of the plaintiffs on 11 November 1987, and the Amended Statement of Claim was filed almost two years after the filing of the action, on 7 December 1987.

On 2 October 1987 the plaintiffs filed an application to exclude one of the defendant’s advocates, which was decided on 30 July 1988.

On 10 September 1988 the plaintiffs filed an application to set aside the applicant’s counterclaim. This application was successful four months later, on 11 January 1989.

The applicant filed an appeal (No. 7804/89) against this judgment on 21 January 1989, which was decided by the Supreme Court on 21 April 1992.

On 17 November 1989 the defendant filed an application to stay the proceedings, which was dismissed on 16 February 1990 following a hearing.

On 27 May 1992 the defendant again filed an application to stay the proceedings until the determination of the application which he had filed before the European Commission of Human Rights. However, the District Court rejected that request on 22 September 1992.

On 19 October 1992 the defendant jointly with the plaintiffs applied for the adjournment of the hearing which had been fixed for 11 November 1992.

On 6 October 1992 and 15 December 1992 the defendant and the plaintiffs respectively filed two requests for supplementary evidence. On 4 February 1993 the District Court issued the relevant orders, and the parties complied with them on 12 April 1995.

The District Court set down the date of the hearing in action No. 747/86 for 23 May 1994. On that date the hearing was adjourned until 14 October 1994, and then until 14 February 1995 with the parties’ consent.

On 13 February 1995 the applicant filed an application to have the action dismissed. The application was based, inter alia , on Articles 30, 33, 34 and 35 of the Cypriot Constitution, and Articles 6, 13 and 14 of the European Convention on Human Rights, as well as certain provisions of the Civil Procedure Rules in force in Cyprus and the inherent jurisdiction of the court. The applicant complained that there had been inordinate delay both in filing the action and in having it heard, and that deciding it at that late stage would infringe the above Articles and deprive the defendant of his right to a fair hearing within a reasonable time.

The applicant maintained that the continuance of the proceedings would be vexatious and would constitute an abuse of the process of the court. He further alleged that the court should consider the fact that, according to the Limitation of Actions Law, the action would have been statute-barred several years before its filing, had the operation of this Law not been suspended by Law 57/64, the constitutionality of which was challenged. Important witnesses who should have testified as to the validity of several documents and transactions relating to the plaintiffs’ claims were dead, too old or could not be found. Moreover, the applicant was sued as a guarantor, whereas the principal debtor company had in the meantime been dissolved, one of the other two co-guarantors was dead and the second was very old and ill, and his whereabouts were unknown. The applicant could not therefore claim compensation from these persons.

The District Court rejected the application on 1 August 1995 on the ground that it could not take into account the delay before the filing of the writ, and that the plaintiffs were equally prejudiced by the delay in the proceedings.

On 1 August 1995 the applicant lodged an appeal against this judgment (civil appeal No. 9520). On 3 October 1995 he filed an application to stay the proceedings pending determination of civil appeal No. 9520. The District Court noted on record that it was well established in the Supreme Court’s case-law that piecemeal appeals could not constitute a valid reason for delaying or adjourning the main proceedings.

In the meantime the hearing of the case had begun and continued for five days between 4 and 8 March 1996. On 20 March the hearing was adjourned until 25 April 1996 but, before that date, the case was taken off the list and adjourned indefinitely because the Presiding Judge had been promoted to the Supreme Court.

By 1 August 1996 the case had been assigned to a new bench of the court.

The hearing was then set down for 16 October 1996, to take place de novo before another Judge, and then was adjourned (at the request of the plaintiffs and to which the defendant did not object) until 19 November 1996, then until 12 February 1997 (at the request of the plaintiffs and to which the defendant did not object) and again until 8 May 1997. The applicant claims that the reason for these adjournments was the appointment of the Judge to whom the case had been attributed to the presidency of the Assize Court.

On 8 May 1997 the hearing began before yet another judge and lasted for 18 full days. However, not even the examination of the first witness for the plaintiffs was completed at that hearing. The court decided that the hearing should continue during the summer recess, on 15 and 17 July 1997. For both dates the plaintiffs secured an adjournment, with the applicant’s consent, due to other engagements by the Judge before whom the hearing was conducted. The hearing was fixed for 7 October 1997.

Then the Judge before whom the hearing was conducted was promoted to the Supreme Court and had to abandon the examination of the case. Therefore the case had to start again for a third time. On 15 October 1997 the case was assigned to the President of the District Court, who, as it appears from the record, remarked to both sides that the filing of interlocutory applications, however permissible, would result in the further prolongation of the proceedings. The hearing was set down for 9 March 1998.

On 8 July 1997 the plaintiffs applied for an order to discover certain documents. It was refused on 21 November 1997, due to the parties’ non-appearance before the Court. On 15 December 1997 the newly assigned President of the District Court fixed the main action for hearing on 9 and 10 March 1998. On 22 December 1997 the plaintiffs filed a new application for the inspection of documents, to which the applicant objected on 23 February 1998. The hearing of the application commenced on 25 February 1998 and took over the dates which had been scheduled for the hearing of the main action. The application was granted on 5 May 1998.

On 6 March 1998 the plaintiffs filed an application to amend their Statement of Claim for the second time. The applicant objected and a hearing was held on 24 June and 1 July 1998. The application was refused on 6 November 1998 and the plaintiffs lodged an appeal, which was heard and decided on 19 January 1999. The District Court’s judgment was reversed in part, and an order to amend was then granted.

On 9 March 1998 the plaintiffs filed an application for the continuation of the hearing of the action from the point it had reached in May 1997.

Due to the above applications, the hearing of the action which had been fixed for 9 March 1998 was adjourned until 24 June 1998 and then re-adjourned until 21, 22, 25, 26, 27 and 28 January 1999, and then until 29, 30, 31 March and 6 and 7 April 1999. Six days before the re-scheduled hearing, the applicant filed a request to amend his statement of defence, to which no objection was made by the plaintiffs.

Appeal No. 9520 (lodged on 1 August 1995) was heard on 5 May 1998. Judgment was given on 7 July 1998. In its judgment the Supreme Court considered that the fairness of the proceedings ought to be considered with, and as part of, the proceedings relating to the action itself. It rejected the contention that the Limitation of Actions (Suspension) Law, which permits the filing of an action without any limitation in time, was unconstitutional. The Supreme Court based its decision on a precedent, the Paporis v. the National Bank of Greece judgment of 18 December 1986, where it had ruled that in civil actions the reasonableness of the length of judicial proceedings is determined from the date of their institution, and that the delay in filing such an action, however long, is immaterial. Accordingly, the Supreme Court ordered the proceedings to be continued and the hearing of the action to be fixed as soon as possible.

Eventually, the hearing before the President of the District Court started on 6 April 1999 and continued on 2, 14, 15 and 21 June 1999, 28 and 29 September 1999, 4, 5, 6, 7 and 8 October 1999, and on 9, 10, 12, 23 and 24 November 1999. It continued on 7, 9, 15, 16, 17 and 18 February 2000 and on 21, 22 29 and 31 March 2000. It resumed on 16 May 2000 and on 10 and 12 July 2000. On that last date, the examination-in-chief of the first witness for the plaintiffs was completed. The cross-examination of this witness started on 17 October 2000 and continued on 19, 20, 25, 26 and 27 October 2000. It was scheduled to continue on 20, 21, 22 27, 28 and 29 November 2000. According to the applicant, after the completion of this cross-examination, the witness’ re-examination by the plaintiff’s counsel was to begin.

On 9 May 2000 the applicant applied to the District Court for another stay of the proceedings pending the transcription of the examination of the witness.

COMPLAINT

The applicant alleges that the ten year delay in filing the action against him, and the thirteen year duration of the proceedings so far, which have not yet been completed, constitute a violation of his right to have his civil obligations determined by a fair hearing within a reasonable time. Therefore, the judgment of the Supreme Court ordering the continuation of the proceedings infringes Article 6 § 1 of the Convention because

- it causes further delay;

- it deprives the applicant of the opportunity to secure all the necessary evidence in support of his defence due to the lapse of so many years; and

- deprives him of the opportunity to claim compensation from the principal debtors and co-guarantors.

THE LAW

The applicant complains about the fairness and the length of the proceedings before the District Court. He alleges a violation of Article 6 § 1 of the Convention which, as far as relevant, reads as follows:

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

1. In the first place, the Government state that the applicant does not distinguish between the two rights and raises the issue of the delay in what appears to be a dual context, i.e. amounting to an alleged violation of the right to a hearing within a reasonable time and/or amounting to a violation of the right to a fair hearing. Relying upon the formulation of the Court’s question, when the Court communicated the application to the Government, they contend that the complaint regarding the fairness of the proceedings should be declared inadmissible.

The applicant considers that the failure to have his civil rights and obligations determined within a reasonable time is closely and inseparably linked with his right to a fair hearing. His appeal No. 9520 to the Supreme Court included a complaint of inordinate delay in starting the proceedings, thereby rendering the proceedings unfair, contrary to Article 6 of the Convention and Article 30.2 of the Cyprus Constitution. A delay in the proceedings would be of no significance if it did not lead to an unfair hearing.

The Court notes that the applicant does not raise any specific complaint concerning the fairness of the proceedings. He only considers that an unreasonable delay, as in the present case, affects the likelihood of a fair hearing. In that respect, the Court recalls that by requiring that cases be heard “within a reasonable time”, the Convention stresses the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see the Moreira de Azevedo v. Portugal judgment of 23 October 1990, Series A No. 189, § 74). Accordingly, the Court considers that no separate issue arises under this head and it will examine the application under the reasonable time requirement.

2. The Government contend that the case was particularly complex. The pleadings filed were detailed, lengthy and had been amended repeatedly to establish and solidify the facts in issue. Both parties relied on bulky documentary evidence. The plaintiffs were a Lebanese offshore banking unit, whereas, the guarantee, forming the subject matter of the action relates to the performance of contractual obligations in Africa by a company set up in Greece, which has been wound up. Complicated legal issues arose including conflict of laws issues on the proper law to be applied. Both parties relied strongly on testimony by witnesses from abroad. In addition, to the extent that foreign law is applicable in this case, according to the Cyprus Law of Evidence, this must be proved by expert testimony, as the domestic courts can only take judicial notice of Cyprus legislation. The testimony of the first witness took up twenty-nine full days of court sittings.

The Government further submit that the applicant’s conduct throughout the proceedings contributed substantially to the overall length of the proceedings. On several occasions the applicant attempted to stay the proceedings before the District Court (17 November 1989, 7 May 1992, 3 October 1995 and 9 May 2000). One day before the commencement of the hearing of 14 February 1995, the defendant filed an interlocutory application seeking the dismissal of the action due to the delay caused by the plaintiffs. A total of twenty-three interlocutory applications have been filed so far, ten of which by the defendant. Out of these ten, four reached the hearing stage before the District Court, following the filing of an objection by the other side. Further, on two occasions the defendant appealed to the Supreme Court against rulings of the District Courts in such applications. A significant number of adjournments, both at the District Court and Supreme Court level were granted upon applications by counsel for the defendant, either alone, or jointly with the other side, for different reasons.

When the President of the District Court was appointed to the Supreme Court, the second member of the District Court lacked jurisdiction to continue alone with the hearing. As it was impossible to place before the new bench of the court the transcript of the oral evidence taken by the previous bench, the re-hearing of the case was unavoidable. Even if the appointment of the two judges had not interfered with the progress of the case, the overall duration of the proceedings would not have been significantly shorter. On 25 April 1996 the Presiding judge was appointed to the Supreme Court. By 1 August 1996 the case had been assigned to a new bench which on the same date fixed the case for hearing on 16 October 1996. As from 15 October 1997, upon the new assignment of the case to the President of the District Court and despite his warning of delay, the parties continued to file applications.

In the applicant’s submission, the proceedings were unduly protracted because there had been numerous, inordinate delays by the plaintiffs and the Supreme Court. Moreover, some delays were due to organisational problems of the courts which were entirely outside the control of the parties. Most of the requests for adjournments (and certainly those which caused delay) had been made by the plaintiffs, as well as most of the interlocutory applications. However, the Government failed to indicate if and to what extent any of these applications resulted in the delay of the hearing of the main action, or whether, without them, the hearings would have started earlier and been completed, or at least would have progressed to a stage beyond the hearing of one witness. As for the complexity of the case invoked by the Government, the applicant states that it is a factor that may excuse some delay after the hearing starts but not before. All the elements set forth by the Government to justify the complexity of the case are entirely irrelevant in respect to the delays that have occurred so far.

The Court notes that the period to be taken into consideration began not on 23 January 1986, when action No. 747/86 was instituted against the applicant before the District Court of Nicosia, but only on 1 January 1989, when the declaration whereby Cyprus recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings are still pending some 12 years later. In order to determine the reasonableness of the length of time in question, regard must be had, however, to the state of the case on 1 January 1989 (see, among other authorities, the Proszak v. Poland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, § 31). The Court notes that at that stage the proceedings had already been pending nearly three years.

The Court considers, in the light of the parties submissions, that the application raises complex issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have 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