THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57683/00 by Andreas LYSSIOTIS against Cyprus

The European Court of Human Rights (Third Section) , sitting on 11 July 2000 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 3 April 2000 and registered on 29 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Cypriot national and a pensioner, born in 1923 and living in Larnaca.

A. The circumstances of the case

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

On 28 March 1973 the applicant acquired a plot of land measuring 1 and 3/4 acres. On 24 March 1977 the Ministry of Transport decided to expropriate 1 and 1/4 acres (1719 square metres) of the applicant's land in order to construct the Nicosia-Limassol highway (administrative act 234/24.3.77). On 9 January 1981 another 850 square feet (79 square metres) were expropriated (administrative act 10/9.1.91).

On 13 August 1983 the Land Registry Office of the Province of Limassol offered the applicant 4,200 Cyprus pounds by way of compensation. The applicant rejected this offer on 24 September 1983.

On 10 December 1985 a second offer of 3,880 pounds was made to the applicant, which he rejected as well.

On 4 September 1987 the Land Registry referred the case of the applicant, together with other similar cases, to the District Court ( Eparhiako Dikastirio ) of Limassol (reference No. 29/87).

On 20 November 1987 Mr. G.G., a lawyer practising in Cyprus, declared before the District Court that he would be representing the applicant in the proceedings. The applicant signed a power of attorney authorising G.G. to act on his behalf in the specific case.

On 17 June 1988 Law 84/88 was enacted providing for the recalculation of compensation awarded in expropriation cases. On 28 September 1988 an offer of 21,240 pounds was made to the applicant, which he accepted on 3 October 1988. The applicant was not, however, paid this sum, as the Republic lodged, on an unspecified date, an appeal with the Supreme Court ( Anotato Dikastirio ) challenging the applicability of the new law in cases of expropriation pending before the courts.

On 29 September 1989 the Supreme Court considered that the provisions of Law 84/88 did not apply in cases of expropriation pending before the courts. Following this decision, the applicant was informed on 18 November 1989 that the offer made to him on 28 September 1988 had no legal basis and was null and void. Consequently, the District Court of Limassol resumed its examination of case No. 29/87.

According to the Government, the proceedings before the District Court followed the course which is described below.

On 13 November 1990 G.G. was summoned to appear before the District Court of Limassol on behalf of the applicant at a hearing on 21 December 1990. On 21 December 1990 Mr. B. appeared before the District Court on behalf of the applicant, replacing G.G. The District Court decided to adjourn the hearing until 22 February 1991.

At the hearing of 22 February 1991 the applicant was represented by Mr. I., acting on behalf of G.G. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant and certain other persons, until 29 March 1991.

On 26 February 1991 G.G. entered a claim on behalf of the applicant. At the hearing of 29 March 1991 the applicant was not represented. G.G. was, however, present in his capacity as representative of certain other persons claiming compensation. The District Court decided to adjourn until 15 May 1991.

At the hearing of 15 May 1991 the applicant was represented by Mr. K., acting on behalf of G.G. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant and certain other persons, until 14 June 1991. At the hearing of 14 June 1991 the applicant was again represented by K., acting on behalf of G.G. The District Court decided to adjourn the case until 27 September 1991. At the hearing of 27 September 1991 the applicant was represented by G.G. The District Court decided to adjourn the case until 20 December 1991.

On 20 December 1991 the District Court of Limassol held another hearing at which the applicant was not represented. G.G. was, however, present in his capacity as representative of certain other persons claiming compensation. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant, until 28 February 1992.  

At the hearing of 28 February 1992 the applicant was not represented. The District Court heard the case in his absence and decided to award him 8,696 pounds by way of compensation. On 10 August 1992 the Land Registry issued an order for the payment of this sum in favour of the applicant.

On 10 November 1993 the applicant lodged an application with the European Commission of Human Rights. He complained of a violation of his rights under Article 1 of Protocol No. 1 in that he had not been paid adequate compensation for the expropriation of his land, and also of a violation of Article 6 § 1 of the Convention since he had not been heard in the determination of his civil rights and obligations.

In the proceedings before the Commission, the applicant claimed that he was unaware of these developments. In a letter addressed to the Commission dated 28 July 1994 the applicant claimed that a year after he had received the letter of 18 November 1989 (informing him of the outcome of the proceedings before the Supreme Court and of the resumption of the proceedings before the District Court of Limassol) he went to the Registry of the District Court of Limassol. There he met a former judge, whom he knew by sight and the name of whom he would disclose to the Commission later, showed him the letter of 18 November 1989 and together they appeared before the Registrar who informed them that the case would be decided in Nicosia. The applicant also claimed that a year after he had received the letter of 18 November 1989 he visited the Limassol Court Registrar accompanied by a lawyer, Mr. V., in order to be informed of the date of the determination of lawsuit No. 29/87. The reply he received was that the case was under investigation in Nicosia without explanation by which body.

The applicant stated that in November 1991 he assigned his case to a lawyer practising in  Nicosia, Mr. E. Two days later E. informed the applicant that he could not represent him in the particular case. Towards the end of 1992 the applicant allegedly received a cheque dated 17 August 1992 for 8,696 pounds, with no covering letter, which he returned to the Limassol Land Registry on 20 January 1993.

The applicant stated that in October 1993 he contacted the Attorney General's Office, where he was informed that case No. 29/87 had been heard and that he could no longer appeal against the decision of the Provincial Court.

On 17 November 1993 the applicant wrote to the Ministry of Transport and Public Works complaining that he had not been invited to participate in the proceedings before the District Court. By letter of 20 April 1994 the Ministry of Transport gave the applicant a detailed account of the history of the case. In the letter it is mentioned that the applicant was represented before the District Court by a lawyer from Larnaca, Mr. A.G, who has the same surname as G.G.

Upon receipt of this letter, the applicant wrote on 4 and 26 May 1994 to A.G. asking him to clarify his role in the proceedings. In his second letter the applicant refers to a telephone conversation during which an employee of A.G. confirmed to the applicant that A.G. did not know anything about the proceedings.

On 16 October 1996 the Commission declared the application inadmissible for non exhaustion of domestic remedies. The Commission noted that although the applicant claimed that when he was informed of the court decision fixing the amount of compensation the time-limit for lodging an appeal had expired, he could have asked for an extension and that nothing had been submitted which could lead to the conclusion that such an application would have had no prospects of success.

On 29 September 1998 the applicant invited the District Court of Larnaca to grant him an extension of the time-limit to lodge an application under Order 33 Rule 5 of the Civil Procedure Rules in order to have the judgment of 28 February 1992 of the District Court of Limassol set aside. He alleged that he was confused by all the correspondence exchanged with the competent authorities and thought that the proceedings before the District Court of Limassol were adjourned. As a result, he did not consider it appropriate to pursue the proceedings.

On 5 April 1999 the District Court of Larnaca dismissed the applicant’s request on the ground that his submissions were unfounded. The District Court noted that on 21 December 1990 a lawyer, Mr B., had appeared before it on behalf of the applicant and that at the hearing of 22 February 1991 the applicant had been represented by Mr I., acting on behalf of G.G. Furthermore, on 26 February 1991 G.G. had entered a claim on behalf of the applicant. However, it transpired from the minutes of the hearing of 27 September 1991 that the applicant had not appeared before the court on that date but was represented by G.G. The minutes did not specify whether this lawyer was from Larnaca or Limassol. The District Court concluded that the applicant had not shown any interest in the course of the proceedings until the District Court of Limassol delivered its judgment on 28 February 1992. Then for three years he remained indifferent and lodged an application with the European Commission. Six years and a half had elapsed between the judgment of 28 February 1992 and the introduction of the application under examination by the District Court.

The applicant appealed to the Supreme Court, but the appeal was dismissed on 22 March 2000. It found that the District Court had exercised its unfettered discretion within the limits provided for by law.

B. Relevant domestic law and practice

Rule 14 of the Compensation Assessment Tribunal Rules of 1956 provides as follows:

"If ... any party to a reference does not appear at (the)  time and place (appointed for the hearing) the President or the Tribunal may hear and determine the ... reference in his absence and may make such order as to costs as he or it thinks fit."

Order 33 Rule 5 of the Civil Procedure Rules, which apply mutatis mutandis by virtue of section 20 of the Compulsory Acquisition of Property Law of 1962, provides as follows:

"Any judgment obtained where one party does not appear at the trial may in a proper case be set aside by the Court upon such terms as may seem fit, upon an application made within 15 days after the trial."

Order 57 Rule 2 of the Civil Procedure Rules further provides as follows:

"A Court ... shall have the power to extend ... the time-limits fixed by these rules, ..., upon such terms (if any) as the justice of the case may require."

The courts enjoy unfettered discretion insofar as extensions of time-limits are concerned. This discretion is exercised in the light of the circumstances of each case and in the interests of justice. A case where the advocate has failed to appear at the trial, thus causing injustice to the case of his client, is a typical example of a case where the national court will find that the justice of the case requires an extension of the time-limit for filing an application under Order 33 Rule 5. However, long delays in asking for an extension require satisfactory explanation.

COMPLAINTS

The applicant alleges a violation of his rights under Article 1 of Protocol No. 1 and Article 6 of the Convention, in that allegedly he was not paid adequate compensation for the expropriation of his land and was not heard in the determination of his civil rights and obligations.

THE LAW

The applicant alleges that he was not paid adequate compensation for the expropriation of his land and that he was deprived of the possibility to present his arguments before the courts in relation to the assessment of the compensation. He relies on Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention, which provide as follows:

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 6 § 1 of the Convention

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

The Court notes that the applicant has been deprived of part of his property, in accordance with the relevant provisions of domestic law, so that a major motorway could be built, and that the expropriation thus pursued a lawful aim in the public interest.

The Court recalls that an interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicant. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under Article 1. That Article does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest” may call for less than reimbursement of the full market value (see the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 34-35, §§ 70-71).

In the present case the Court notes that in 1983 and 1985, the Land Registry Office made two offers of compensation (4,200 and 3,800 pounds respectively) to the applicant which he rejected. In 1988, following the enactment of Law 84/88 providing for the recalculation of compensation in expropriation cases, the applicant accepted a third, much higher offer of 21,240 pounds. However, in November 1989 the Land Registry Office informed the applicant that the third offer was null and void because the above-mentioned Law did not apply in cases where proceedings for the assessment of compensation were already pending before the courts. The applicant’s case was referred to the District Court of Limassol by the Land Registry Office and was adjudicated on 28 February 1992. The District Court decided to award him 8,696 pounds by way of compensation, the payment of which was ordered by the Land Registry Office on 10 August 1992.

Several years later, on 5 April 1999, the District Court of Larnaca exercised its unfettered discretion and dismissed the applicant’s belated request for an extension of the time-limit to appeal against the judgment of 28 February 1992. In reviewing the course of the proceedings before the District Court of Limassol, the District Court of Larnaca found that the applicant was represented by a lawyer, at least during the major part of the proceedings. It held that the lack of representation of the applicant at the hearing on 28 February 1992 was attributable to his own lack of interest in the course of the proceedings, which was also reflected in the fact that, according to him, he only realised three years after the event that judgment in his case had been delivered.

Having regard to the compensation awarded by the competent courts as well as to the applicant’s conduct in the proceedings, the Court considers that the present case does not disclose any appearance of a violation of either of the Articles relied on by the applicant.

It follows that the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P Costa Registrar              President