THIRD SECTION

DECISION

Application no. 35686/16 Styliani PETROUDI against Cyprus

The European Court of Human Rights (Third Section), sitting on 9 November 2021 as a Committee composed of:

María Elósegui, President, Darian Pavli, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 14 June 2016,

Having regard to the observations submitted by the respondent Government (“the Government”) and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Styliani Petroudi, is a Cypriot national who was born in 1976 and lives in Nicosia. She was represented before the Court by Mr I. Kyriakidis, a lawyer practising in Nicosia.

2. The Government were represented by their Agent, Mr C. Clerides, Attorney General of the Republic of Cyprus, and subsequently by Mr G. Savvides, his successor in that office.

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

4 . On 7 August 2013 the Nicosia Family Court found the applicant guilty of contempt of court.

5 . On 9 August 2013 the court imposed a fine of 500 euros (EUR) on the applicant and in addition sentenced her to four days’ imprisonment.

6. On 14 August 2013 the applicant filed a notice of appeal against the above-mentioned decisions.

7. On 11 March 2014, when the parties appeared at a hearing before the Family Court of Appeal, a judge remarked that the title of the notice of appeal made reference to the “Supreme Court” instead of the “Family Court of Appeal”, thus raising an issue concerning the court’s jurisdiction.

8 . The applicant contested that position. She argued, inter alia , that the nature of the decision appealed against, as well as the circumstances of the case, gave even greater importance to her right to be heard.

9 . On 6 June 2014, in dismissing the appeal, the court held that in view of the irregularity in the title, the appeal was invalid, and the court lacked jurisdiction to take cognisance of it.

10. On 10 June 2014 the applicant lodged an application with the Nicosia Family Court, seeking an order to extend the time-limit for filing a notice of appeal against the decisions of 7 and 9 August 2013.

11. On 7 October 2014 the Nicosia Family Court dismissed the application.

12. On 8 October 2014 the applicant lodged an application with the Family Court of Appeal, repeating the same request.

13 . On 16 December 2015 the Family Court of Appeal dismissed the application, noting that the applicant had in fact lodged an appeal against the Nicosia Family Court’s decisions within the prescribed time-limit, albeit with the wrong court. She was effectively seeking a second chance at bringing an appeal before the competent court.

1. The Family Courts Procedural Rule (2/1990)

14. In accordance with Rule 10 of the Family Courts Procedural Rule (2/1990), the Civil Procedure Rules apply by analogy to appeals from the Family Court.

2. The Civil Procedure Rules

15. Order 35, Rule 2 of the Civil Procedure Rules provides that subject and without prejudice to Order 57, Rule 2, appeals cannot be brought after the expiration of six weeks from the time that a judgment becomes binding, unless the court or a judge shall enlarge the said time.

16. Order 57, Rule 2 of the Civil Procedure Rules, provides as follows:

“a Court or Judge shall have power to enlarge or abridge the time appointed by the Rules [...] for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed [...].”

3. Domestic case-law and practice

17 . According to domestic case-law, the power of the domestic courts to extend the time-limit for appeal is a matter of discretion. Such discretion is not subject to pre-defined restrictions; it must be judicially exercised on the facts and specific circumstances of each case. The applicable time-limits can only be extended in exceptional cases. In exercising such discretion, the domestic courts will be mainly guided by the interests of justice taking into account, inter alia, whether there are serious reasons justifying the extension requested, the application for extension is objectively justified by the circumstances of the case, and the party requesting the extension showed due diligence and did not unjustifiably delay filing the application The court should also take into account the principle of the finality of judgments and the adverse consequences to the other party’s interests (the domestic practice summarised, for example in Deluxe Terrazo Tiles & Marbles Ltd., v. Ergoliptiki Etaireia “Nemesis Ltd” (1989) 1E A.A.D 658, and Theodoros Hoppis v. Iakovou Panayi (1993) 1 A.A.D. 140 ).

18 . The failure of the litigant or their representative to take the appropriate steps for the filing of an appeal within the prescribed time may be considered as a sufficient ground upon which the discretion of the court to extend the time-limit could be exercised, depending on the special circumstances of each case and where no serious inconvenience is caused to the other party (see, Soliatis kai Synergatai v. Andrea Christodoulide (1990) 1 A.A.D. 1162, Rolandos Evagorou v. Lapertas Fisheries Ltd and others (2005) 1 A.A.D. 140).

COMPLAINTS

19. Relying on Article 6 § 1 of the Convention, the applicant complained that the decision to dismiss her appeal (no. 21/2013) for lack of jurisdiction had been excessively formalistic, violating her right of access to a court, and that in that connection she had not had an effective remedy under Article 13 of the Convention.

20. The applicant further complained under Article 7 of the Convention that the Nicosia Family Court had imposed a heavier penalty than the one provided for in the applicable domestic law.

THE LAW

21. The Government submitted that the applicant had failed to exhaust domestic remedies, as she had not raised her complaints, at least in substance, with the domestic courts.

22. The Government further submitted that the application was introduced outside the six months’ time limit under Article 35 § 1 of the Convention, which stipulates:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

23. The Government contended that the final domestic decision in the applicant’s case should be regarded as the judgment of the Family Court of Appeal of 6 May 2014 (see paragraph 9 above). As a result, the Government argued that more than six months had lapsed by the time the application was lodged with this Court on 14 June 2016. In this connection, they argued that the application for the extension of time-limit constituted an extraordinary remedy as time limits could only be extended in exceptional cases, the remedy had no precise time-limits and was dependent on the discretion of the national courts. Reiterating the domestic courts’ reasoning, the Government further submitted that in the present case, the remedy offered no reasonable chances of success.

24 . The applicant disagreed. She submitted that the final domestic decision was the judgment of the Family Court of Appeal of 16 December 2015. She considered that she had had good chances of success as, inter alia , such extension could be granted after a considerable time, a lawyer’s error was sufficient ground for extending the time-limit and the interests of the other party would not be harmed.

25. The Court recalls that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).

26 . The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Jeronovičs v. Latvia [GC], no. 44898/10, §75, 5 July 2016). Account cannot be taken of remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant. Similarly, remedies which have no precise time-limits create uncertainty and render nugatory the six-month rule contained in Article 35 § 1 (see Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009, and Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 97-102 and 104, 12 May 2015).

27. Turning to the facts of the present case, the Court notes that following the dismissal of her appeal, the applicant applied to the Nicosia Family Court and subsequently to the Family Court of Appeal for leave to extend the time-limit of filing her appeal. This was dismissed as an attempt to re-submit a similar appeal following the rejection of the first one (see paragraph 13 above). Considering the circumstances of the present case, it appears that the application to extend the time-limit for filing an appeal was indeed an attempt by the applicant to correct the alleged error and submit a fresh appeal based on the same grounds, rather than an extension of the time-limit for objective reasons.

28. Regardless of the above, the Court notes that as per the domestic case-law (see paragraph 17 above) an application for an extension of the time-limit for filing an appeal is at the discretion of the courts. It is evident that this discretion is granted only in exceptional circumstances and on a case-by-case basis. The Court further notes that the applicant has not provided domestic case-law, neither before this Court, nor domestically, indicating that a an error designating the appeal court could be regarded as a ground for extending the time-limit for filing a fresh appeal (see paragraph 18 above).

29. There are no precise time-limits for lodging a request for extension. By the applicant’s own admission, such extension may be granted after a considerable time (see paragraph 24 above) allowing for uncertainty contrary to the purpose of Article 35 § 1 of the Convention (see paragraph 26 above; see also Smadikov v. Russia (dec.), no. 10810/15, § 50, 31 January 2017).

30. In view of the considerations above, the Court comes to the conclusion that the application to extend the time-limit for filing an appeal in the present case did not constitute an ordinary remedy within the meaning of Article 35 § 1 of the Convention and should not be taken into consideration for the purpose of applying the six-month rule. Accordingly, the Court finds that the final domestic decision in this case was the appeal decision of 6 June 2014. It follows that the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 December 2021.

{signature_p_2}

Olga Chernishova María Elósegui Deputy Registrar President