THIRD SECTION

PARTIAL 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 7 November 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, 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 21 December 1999 and registered on 22 December 1999,

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 applicants , 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 Tasos Papadopoulos –Archives, Gigolo, Computer and Specimen of writing”, of which the second applicant was the author. The article reads as follows (translation by applicant's representatives):

“According to the ‘ Kirycas ’, the mouthpiece of Mr Tasos Papadopoulos , ‘President Kyprianou intends to appoint another person to head the party’s ticket, a rather extra-partisan agent beyond the ranks of DIKO’: (‘ Kirycas ’, 20 October1985). And according to the correct conclusions drawn by the ‘ Charavgi ’ newspaper, ‘ Kirycas ’ suggests therefore that the “dropout of political life” of the Union of the Centre, which does not exist any more, be the head of the DIKO’s ballot.

In other words, Tasos Papadopoulos , because he is the one we call ‘ Kirycas ’, puts forward his name to head the DIKO’s ballot.

I do not know whether this unselfish suggestion of Mr Tasos Papadopoulos has touched the parliamentary representative of DIKO, Mr Alexis Galanos and the other parliamentarians of the party who had at last found their capo , because the gesture of Mr Papadopoulos has touched me very much.

The fact that Mr Tasos Papadopoulos dallies actually at lib with Spyros Kyprianou and offers himself, disinterestedly indeed, as the head of the ticket of Kipryanou’s party is, just like Sofiano’s lease, a sign of a lack of dignity on the part of a group of people who once played a role in the political life of the country, albeit a walk-on part or a servant’s role, according to a very fitting consideration of Nitsa Christodoulou , Makarios ’ secretary for many years. This is what is mentioned in her calendar when she once referred to Tasos Papandopoulos .

When Kipryanou revealed in summer 1978 the Big Conspiracy and the devilish mastermind behind this plot, he ousted Mr Tasos Papandopoulos , blaming him indirectly for being this mastermind. Mr Tasos Papadopoulos was then the subject of quite a cruel campaign and everyone expected this brave politician at least to defend himself and his dignity. Instead, Mr Tasos Papadopoulos left, trusting us with the task of defending him, and he went away and hid in his wormhole out of fear. He appeared again three years later.

I remember that after the revelation of the Big Conspiracy and some declarations of Kipryanou against Tasos Papadopoulos , the latter called the newspapers' agencies to tell us that he would give us a press conference the next day to answer the allegations against him. However, the next morning he called to cancel; Mr Tasos Papadopoulos was afraid and preferred to hide and avoid talking.

Three years passed before Mr Tasos Papadopoulos could open his mouth again and talk about the topic, having brought out in the ‘ Kirycas ’ some fragments from the famous Kyprianou’s tape, in which reference was made to the local and foreign mastermind and the Conspiracy. (‘ Kirycas ’ 28,April 1981)

A politician who did not dare to defend himself when he should, who preferred to go away and hide, is certainly not an example to imitate even in a society with such a low moral and political level.

Mr Tasos Papadopoulos took courage and came out of hiding when, thanks to other parties, the soap bubble of the Big Conspiracy and the mastermind were broken; Kyprianou was no longer dangerous but only caused hilarity. Tasos Papadopoulos then started talking about the crazy tape and labelled Kyprianou as a scourge, while his newspaper published on the date of the presidential elections a prescription in the name of Kyprianou for a thousand ativan pills.

Swollen by the thousand ativan pills, the whole brain and the whole tape, Tasos Papadopoulos now begs Kyprianou to put his name at the head of his ticket, to offer him the votes of the gigolos, the servants and the aged ladies whom Kyprianou represents.

Tasos Papadopoulos is a classic example of an opportunist politician and political servant and he belongs to those tricky politicians who with their lack of dignity, subservience and unaccountable behaviour contributed to the state we are in nowadays. In 1967 Tasos Papadopoulos , acting as his boss’ servant, played a pioneer role in having the Greek division chased from Cyprus, thereafter rubbing his hands with satisfaction. Now, twenty years later, he asks for the return of this division.

However, what Tasos Papadopoulos lacks even more than his dignity (the political one of course), is what we call being trustworthiness. Tasos Papadopoulos was for years the advisor, friend and collaborator of Mr Glafkos Clerides .

When Mr Clerides was removed from the post of negotiator, Mr Papadopoulos prevented his friend and collaborator grasping the post from which Kyprianou could knock him away; and now he is begging him to put his name at the head of his ticket.

AL. CONSTANTINIDES”

An inset article with the title “Archives. Gigolo, computer and specimens of writing” read as follows:

“The mouthpiece of the aged gigolos and the servants (‘ Kirycas ’) publishes again in yesterday’s edition a note of mine, which was brought out in this column last week under the title ‘Listing in the archives’ with the observation ‘specimen of writing’.

I have not understood what was really wrong or reprehensible according to the boys of ‘K’ in this note of mine, in which I reassure them that I did not drop any malicious hints.

Because it is neither malicious nor reprehensible for someone to update their archives from time to time. On the contrary, we could profit from these circumstances to inform the aged gigolos that I am about to modernise the filing system, transforming it into a computerised one.

AL. CONSTANTINIDES”

For several years Mr Papadopoulos had been a Minister, Counsel for the negotiations concerning the Cyprus issue, Negotiator, Speaker and is now a member of Parliament. He is also the President of the political Party Enosi Kentrou .

On 23 October 1985 Mr Papadopoulos filed a civil action for libel with the District Court of Nicosia. On 3 February 1988, the plaintiff filed his statement of claim and on 12 September 1989 the applicants sent their defence.

Between 12 April 1990 (the date on which a third defendant, who later withdrew from the proceedings, filed his defence) and 14 March 1996 (the date on which the hearing commenced), the examination of the case was adjourned several times.

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.

First, 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. As regards the substance of the case, the District Court noted that the applicants’ lawyer did not contest the defamatory character of the disputed article. It also noted that the second applicant had used insulting vocabulary and based his views on facts which did not reflect the reality or had occurred a long time before the article’s appearance. Furthermore, the District Court considered that the applicants had acted maliciously because they had previously published several other defamatory articles about the plaintiff and, following one such incident, they had already been ordered to pay 5000 Cypriot pounds in damages. As for the applicants’ offer of an apology made during the hearing, the District Court noted that such an apology should had been given immediately after the publication of the article. However, the District Court did not award punitive damages as the applicants’ intentions had not been profit-based and the publishing company did not exercise sufficient control over the entirety of its publications.

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 22 July 1999 the Supreme Court rejected the 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 on the date of the hearing, 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 invited the District Court to adjourn the hearing because he was obliged to appear before another court. On 1 March 1995 the applicants’ lawyer were 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.

As regards the complaint relating to the amount of the award, the Supreme Court held that the disputed article contained a wicked and vulgar attack on Mr Papadopoulos . The reader is “drowned in a flood of ironic bad taste, scoffing and filth directed against the plaintiff. It is impressive how a newspaper with such a large circulation may express itself in such a manner about any citizen of the Republic and especially about a politician who ranks amongst the five most prominent politicians in the country.” The Supreme Court noted that the District Court had concluded that the description of events in the article was untrue and that the Managing Director of the applicant company had conceded that the article went beyond the limits of normal criticism.

Moreover, the Supreme Court dismissed the applicants’ submission that the amount of the award should be reduced because of their offer of an apology to the plaintiff. Although the latter had turned down the offer, the applicants ought to have published such an apology on their own initiative. Only then could such an apology have been taken into account for the calculation of the award.

COMPLAINTS

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

2. The applicants also allege that their liability in libel constituted a violation of Articles 9 and 10 of the Convention. They contend that the facts of the case relate to a period when elections were in progress; the plaintiff was involved in this process and he and the applicants were on opposite sides. Thus a wider margin of tolerance should have been applied.

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention about the length of the proceedings before the competent Cypriot courts, which lasted 13 years and 8 months. Article 6 § 1 of the Convention guarantees, inter alia , a fair hearing within a reasonable time as regards the determination of civil rights and obligations.

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 applicants allege that their liability in libel constituted a violation of Articles 9 and 10 of the Convention, which guarantee freedom of thought and freedom of expression. They contend that the facts of the case relate to a period when elections were in progress; the plaintiff was involved in this process and he and the applicants were on opposite sides. Thus a wider margin of tolerance should have been applied.

The Court reiterates that the purpose of the rule in Article 35 § 1 of the Convention that domestic remedies must be exhausted prior to lodging an application to the Court is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are examined by the Court. That rule must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that the complaints intended to be made subsequently in Strasbourg should have been raised, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, before the national authorities (see the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 19, § 27, and the Akdivar and Others v. Turkey judgment of 16 September 1996 , Reports of Judgments and Decisions 1996 ‑ IV, pp. 1210-11, §§ 65 ‑ 69).

In the present case, the Court notes that the District Court found that the applicants had committed libel and ordered them to pay the plaintiff 12,000 Cypriot pounds in damages. The applicants appealed to the Supreme Court and relied on two grounds: the excessive length of the proceedings and the amount of the award. The legal arguments made by the applicants at that time did not include any complaints connected with Articles 9 and 10 of the Convention. They confined themselves to contending that the amount of the award should be reduced because of their offer of an apology to the plaintiff. However, they did not afford the Supreme Court an opportunity to decide whether the proceedings against them were compatible with the principle of freedom of expression. The Supreme Court rejected the appeal and increased the award to 20,000 Cypriot pounds.

In these circumstances, the Court considers that the applicants’ complaints under Articles 9 and 10 of the Convention were not raised, even in substance, before the Supreme Court.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 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 (Article 6 § 1 of the Convention).

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President