DISSENTING OPINION OF JUDGE NATHANAEL

While I share the view taken that the complaint is indeed admissible, I have to voice my different conclusion on the merits. My dissenting opinion is based on the following considerations which I believe become apparent upon a closer examination of the facts. The factual premise remains the same but its appreciation which was not highlighted in the observations of the Government brings about a different outcome. The following relate to both the first instance proceedings as well as the appeal process.

The first instance proceedings:

From the record of the proceedings before the Paphos Assize Court the following can be noted. They are set out in chronological order for convenience, although their importance obviously differs.

It appears from the record of 4 December 2000 that the hearing of the case was adjourned because the same Assize Court had to commence another urgent criminal case, a homicide case, (previously adjourned) about to begin on the following date 5 December 2000. The record of that date shows that one of the lawyers involved in the homicide case was Mr M. Kyprianou the same lawyer who appeared in the case under discussion. That other case was recorded as number 7919/00 which was in fact the Panovits case which was finally brought before the European Court of Human Rights under application no. 4268/04, judgment issued on 11 December 2008. This follows easily from the appeal judgment of the Supreme Court published in (2003) 2 C.L.R. 310 and referred to in the judgment of the European Court of Human Rights.

On the same date, 4 December 2000, the Paphos Assize Court having in mind the lengthening of the time span ordered the release of the applicant on bail notwithstanding prosecution ' s objection. The applicant remained on bail terms thereafter until his conviction by the Assize Court on 19 March 2003.

On 19 November 2001, defence lawyer himself, Mr M. Kyprianou, essentially requested an adjournment stating that having in mind the bulk of the case and his own schedule it would be preferable if the case was adjourned. Also defence lawyer wanted to discuss DNA issues with the prosecution authority, as well as to be given part of the exhibits in order to place them before the applicant ' s own expert for study as he had carried out a preliminary investigation. The Assize Court granted the adjournment not only because defence requested so, but because of its own lack of time as it was involved in two other continued hearings. It follows that the adjournment between 19 November 2001 and 22 March 2002 could not be attributed solely to the Assize Court as it might have been granted in any event or at least it was also desired by defence as well.

On 22 March 200 2 counsel for the defendant for the first time raised an issue with regard to the particulars of the charges although he could have done so on any one of the previous dates when the case was fixed or listed for hearing. This led to an adjournment and the amendment by the prosecution authority of the charges twice, so that evidence was in fact first given on 28 March 2002.

Defence lawyer on behalf of the applicant never raised any objection to the various adjournments given.

The appellate proceedings:

Although admittedly the record of the Assize Court trial was delayed for one whole year which set back the hearing of the appeal for that period of time, it should also be noted that defence had on three different occasions (10 May 2004, 5 July 2004 and 23 March 2005), requested an adjournment of the appeal hearing the first two on account of the need to study the record of the trial which contained the whole of the evidence. It was stated that it was impossible to go through the 3,820 typed pages of the transcript during the time given. The Supreme Court granted the adjournments so defence lawyer would not feel in any way embarrassed or pressed into commencing the hearing, although the grounds of appeal were well settled and filed with the appropriate Registry within the 10 day limit provided by the Rules. The requested adjournments set back the commencement of the appeal for a whole year. It may thus be noted that the time lost on account of the adjournments “compensates” in a way the one year period inactivity on account of the delay of the preparation of the transcript. Another important element to be taken into account is the fact that the requested adjournments were not in any event necessary as the lawyer who defended the applicant before the Assize Court was the same who appeared at the appeal. He was therefore fully conversant with the facts and the evidence and moreover he had, as the record shows, always the benefit of a junior advocate sitting with him during the trial who must have taken notes throughout.

The fourth criterion:

Further to the above, one may well argue that based on the case law of the Court, in the so called fourth criterion or factor that of “what is at stake” for the applicant, the cases revolve around factors such as the applicant ' s employment, ( Buchholz v. FRG (1981)), civil status ( Sylvester v. Austria (2005)), child custody, health, reputation, title to land, compensation for road accident, financial factors like interest charged on the disputed amount, likelihood of life imprisonment or other heavy sentence ( Henworth v. the United Kingdom (2004)).

In the case under discussion, the Applicant was 34 years old, was a co-owner of a restaurant, later turned into a kiosk business and was released on bail on 4 December 2000, 5 ½ months after his arrest and detention. So the urgency factor necessitating a more rigorous standard to be applied when the accused is in detention ( Abdoella v. the Netherlands (1992)), was not as high or demanding as would have been otherwise. Moreover the lengthening of the case, as recognised by the Supreme Court in its appeal judgment, was to some extent attributable to the way the defence was conducted. One may stress here that the applicant had on two occasions voluntarily confessed the crime in written statements which were subsequently, as was his constitutional right, challenged but were nevertheless upheld by the Assize Court and sustained on appeal. Despite also the existence of strong DNA scientific evidence implicating the applicant into having sexual contact with the complainant, who was under age, this was also challenged.

It follows from the above that the applicant had no recognisable ' at stake ' factor that would necessitate urgent hearing. That perhaps explains also the three consecutive adjournments requested by the defence. It is also quite important to note that at the appeal stage, the Applicant raised the issue of breach of Article 6.1 of the Convention (same as Article 30.2 of the Cyprus Constitution), not by attributing it directly to the length of the proceedings, but due to the unfairness in the overall treatment of the applicant and his lawyer due to the way the prosecution presented its case which was thought of as improper and oppressive for the defence. The lengthening of proceedings was presented as only a side effect of the above. This ground of appeal was rejected by the Supreme Court (see also paragraphs 12 and 15.3 of the present Application).

So the complaint against a speedy trial was only partially attributed to the adjournments given by the Assize Court , the other part raising issues relating to the way the prosecution handled the case.

It should be added, finally, that at the mitigation stage for the purposes of sentencing, defence lawyer only raised the issue of delay in the proceedings in relation to the loss of possibility of presidential pardon by the then newly elected President of the Republic.

Moreover, according to s. 117(1) of the Criminal Procedure Law, CAP 155, as amended, imprisonment commences on the date the sentence is pronounced but, unless the Court otherwise orders, it is reduced by the period of time the convicted person remained in custody pending or during trial. The Assize Court having not given any order to the contrary, the sentence of the applicant was accordingly modified to take into account his period of custody.

Overall, the case, although there was a delay that could have been avoided, could be treated as not falling within the unreasonable delay parameters as established by the case law of the Court, in view of the way the defence handled the case, the overall complexity of the case, necessitating 104 days of hearing before the Assize Court and several hearings at the appellate stage, the enormous transcript, the fact that the applicant was released at an early stage of the proceedings and that he had nothing tangible at stake to lose. The overall period of 5 years and 3 months, at two levels of jurisdiction, should be in fact 4 years and 3 months allowing for the one year delay solely attributed to the defence. The frustration attributed to the protracted length of the proceedings, in assessing damages, was a theoretical one, as one should recognise that there is a frustration element inherent in any criminal case, especially of his nature. There would have indeed been frustration if the applicant was subsequently acquitted which was not the case, as he was found guilty as charged, making him a convicted felon, hardly in need of any compensation.

In view of all the above, I would dismiss the application on the merits.