AS TO THE ADMISSIBILITY OF
Application no. 73802/01
by Macedonia GAVRIELIDOU and Others
The European Court of Human Rights (Second Section), sitting on 13 November 2003 as a Chamber composed of
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr Gaukur Jörundsson,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr M. Ugrekhelidze,
Mrs A. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 28 August 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mrs Macedonia Gavrielidou, Mr Nicos Kannavas and Mr Andreas Kannavas, Mrs Maria Kannava and Mr George Kannavas, are Cypriot nationals. The third applicant is deceased and is represented by the fourth and fifth applicants who are the administrators of his estate. The latter applicants have also lodged the application in their personal capacity. The applicants were born in 1926, 1936, 1942, 1943 and 1969 respectively, and live in Limassol. They are represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background to the case
The applicants were and/or are defendants in two sets of proceedings initiated against them before the District Court of Limassol. The first set of proceedings (civil action no. 5949/85) commenced on 17 October 1985 and the second set (civil action no. 702/86) on 10 February 1986. The former proceedings are still pending before the District Court of Limassol whereas the latter have been concluded on a second instance level on 21 April 2003.
Both actions were originally filed against the first, second and third applicants in relation to contracts for the sale of certain apartments in a block that was built and owned by a company know as A. Pieris Estates Ltd on land owned by the applicants. Following an agreement between the above company, the applicants and another company (A. Pieri Alakatoudi Beach Court Ltd), A. Pieris Estates Ltd transferred all the rights it had in the block to A. Pieri Alakatoudi Beach Court Ltd. The latter then concluded contracts with the plaintiffs for the sale of apartments in the block. Subsequently, the applicants terminated their agreements with the companies and the plaintiffs brought actions against the applicants and A. Pieri Alakatoudi Beach Court Ltd concerning the flats they had bought. This company was subsequently wound up and the official receiver was joined as a defendant in the domestic proceedings, being the liquidator of this company.
Following the death of the third applicant on 18 May 1995, the fourth and fifth applicants were appointed as administrators of his estate and were joined on 11 January 1996 (civil action no. 702/86) and 19 June 1996 (civil action no. 5949/85) as defendants in both sets of proceedings. They are the wife and son of the deceased and two of his four heirs. Furthermore, on 26 January 1998 the first applicant transferred her share in the relevant property to her two sons.
In both sets of proceedings the plaintiffs request and/or requested the same remedies: an order by the court declaring that, firstly, the contracts of sale of the relevant apartments concluded between them and the above-mentioned company were binding on the latter as well as the applicants who were not parties to the contracts; secondly, that the applicants as co-owners and/or sellers of the relevant apartments held the apartments as trustees for the benefit of the plaintiffs; and lastly, any other remedy the court deems and/or deemed fit to award.
B. Civil action no. 5949/85, St George Car Hire Ltd and others v. Macedonia Gavrielidou and Others.
Proceedings before the District Court of Limassol
1. Facts prior to 1 January 1989
On 17 October 1985 civil action no. 5949/85 was filed in the District Court of Limassol by fourteen plaintiffs against inter alia, the first three applicants.
By 4 December 1985 the plaintiffs and applicants had filed all their pleadings. Following an application by the plaintiffs on 25 September 1986 against the defendant company for judgment in default, the pleadings were completed on 7 January 1987 once the company filed its defence.
On 29 January 1987 the applicants filed an application to amend their defence. Following the filing of an objection by the plaintiffs on 5 March 1987, the application for amendment was dismissed and a new one was filed by the applicants on 8 May 1987. This was fixed for a hearing on 30 June 1987. However, the Court adjourned the hearing until 12 October 1987 in view of the fact that the applicants, on 6 June 1987, had filed an affidavit in reply to the plaintiffs’ objection to the amendment sought. Following the hearing concerning the application, a decision was issued on 31 October 1987 granting leave to the applicants to amend their defence. The order for amendment was drawn up on 2 May 1988, giving the applicants seven days to file their defence. This was filed on 6 May 1988.
In the meantime, the defendant company was wound-up (on 24 October 1987) and, following an application by the plaintiffs, leave was granted to them on 4 June 1988 to continue the action against the applicants and the liquidated defendant company.
2. Facts after 1 January 1989
On 15 March 1989 the court fixed the case for a hearing seven months later on 18 October 1989. The hearing however was adjourned until 9 January 1990 for directions at the request of the applicants’ lawyer who had to appear before the Supreme Court on the same day. On 9 January 1990 the hearing was fixed for 16 May 1990, but on the latter date the District Court did not have sufficient time to deal with the case and adjourned the hearing until 8 November 1990.
On 8 November 1990, the applicants’ lawyer asked for the case to be adjourned since another action had been filed by the applicants against the liquidated company and other building developers in relation to the same contracts. Similarly, the plaintiffs requested a long adjournment for the examination of the relevant matters. In view of the parties’ requests and the fact that the judge presiding over the case had other hearings, the case was adjourned until 4 April 1991. On the latter date the hearing was fixed for 19 September 1991.
In the meantime, an application for the amendment of the title of the action was filed (on 17 September 1991) by the administrator of the estate of one of the plaintiffs who had died. Consequently, the hearing was not held and the action was fixed for directions for 26 November 1991 and then, with the consent of all parties, for 26 February 1992. In the intervening period, on 22 January 1992, the plaintiffs filed an application to amend their action and statement of claim. On 17 February 1992 the applicants filed an objection thereto and, in the attached affidavit of the first applicant, reference was made to delay in the filing of the plaintiffs’ application considering the fact that the action had been before the District Court since 1985. The hearing as to the application for amendment was held on 24 March 1992 and the court issued a decision on 17 September 1992 allowing the plaintiffs to proceed with the requested amendments. All amended pleadings were filed by 6 October 1992.
On 19 October 1992 the applicants filed an application for the discovery on oath of documents relevant to the proceedings held by the plaintiffs. When the resulting affidavits by the fourteen plaintiffs were completed, the case was fixed for 3 June 1993 and then 5 July 1993 for mention. On the latter date the court fixed the hearing for 23 November 1993, to be continued on 24, 25 and 26 November 1993. However, on 23 November 1993, at the joint request of all the parties to enable them to seek an amicable solution to the case, the hearing was adjourned until 6 April 1994, to be continued on 8 April 1994. On the former date it was adjourned at the request of the applicants and with the consent of the other parties for the same reasons, until 7 October 1994.
Following a letter to the registrar of the District Court by the lawyer of the defendant company requesting an adjournment (since he would be abroad), the hearing was adjourned once again until 16 December 1994. This letter had been countersigned by the plaintiffs’ and the applicants’ lawyers.
On 8 December 1994 the applicants sent a letter to the President of the Limassol District Court complaining about the length of these proceedings as well as another set of proceedings before the same court. On 16 December 1994 the court adjourned the hearing of the action until 27 January 1995 due to its heavy workload and in view of the transfer of one of the judges assigned to the case to another court. Following a request by the plaintiffs’ lawyer, the hearing was fixed for 8 February. Following the death of one of the plaintiffs (no. 7), the case was adjourned until 8 March 1995 for directions and, subsequently, until 15 March 1995.
On the latter date the plaintiffs’ lawyer withdrew from the case and the court fixed the case for directions for 12 April 1995. The case was further adjourned with the parties’ consent and was fixed for directions for 9 May 1995 and then for a hearing on 9 October 1995. On the latter date the hearing was adjourned once again until 6 December in order for the parties to amend their pleadings, given the deaths of one of the plaintiffs (see above) and of the third applicant. The proceedings were adjourned several times on this ground, with the parties’ consent, from 28 February until 19 June 1996. On the latter date the court granted leave to the parties to amend their pleadings. Consequently, the amended pleadings were filed joining the fourth and fifth applicants to the proceedings as administrators of the deceased’s estate.
The hearing of the case was fixed for 16 December 1996 and, at the plaintiffs’ request, it was adjourned until 30 January 1997 for mention. Although the applicants’ lawyer consented to the adjournment he expressed his reluctance in view of the protracted length of the proceedings. On 30 January 1997 the hearing was fixed for 14 May 1997 but then the court adjourned it until 3 October 1997 in view of the fact that there was hearing going on in another case. The court adjourned the case once more until 16 October 1997 for directions because the President of the Limassol District Court who was presiding over the case did not have time to deal with it on account of his workload, but also because of his transfer to another court.
Between 16 September 1997 and 20 October 1997 the applicants sent a number of letters to their lawyer as well as the relevant domestic authorities (including the President of the Limassol District Court, the President of the Supreme Court, the Attorney General, the Ministry of Finance and the Ministry of Justice). They complained about the length of proceedings in a number of cases in which they were parties, including actions nos. 5949/85 and 702/86) and that their lawyer was not following their instructions by consenting to the adjournments.
Following this, the applicants’ lawyer asked leave to withdraw from the cases in which he was representing them. The case was fixed for directions for 31 October 1997 in order to give a chance to the applicants to review the allegations they made against their lawyer. Finally, on the above date the applicants’ lawyer was granted leave to withdraw and the action was fixed for 18 November 1997 for further instructions.
On 17 November 1997 the President of Limassol District Court sent a letter to the Supreme Court with his observations concerning all the actions in which the applicants were parties (in total seven). He noted, inter alia, the urgency in the matter and stated that, once a new lawyer was appointed by the applicants, the Limassol District Court would give priority to the case and fix it for hearing as soon as possible.
Although the case was fixed for 18 November 1997, on 19 November 1997 it was adjourned until 3 December 1997 since the President of the District Court had a hearing at another district court, and also at the request of the applicants who wished to appoint a new lawyer. On 2 December 1997, the President adjourned the case to 4 December 1997 for directions since on 3 December 1997 he had another hearing. The case was again adjourned several times between 17 December 1997 and 28 April 1998 to give an opportunity to the applicants to appoint a new lawyer. On the latter date, the plaintiffs’ lawyers did not appear before the District Court and, as a result, the action was dismissed in favour of the applicants (and the other defendant company). In reaching its decision, the court noted that this case had been delayed for a long period of time and that, on that particular day, it had been given priority over other cases.
On the following day, 29 April 1998, the plaintiffs filed an application for the reinstatement of the proceedings. However, because of an oversight, the application was not put before a judge until 16 November 1998 and was also adjourned twice. Consequently, the applicants filed their objection to the application for the reinstatement of the proceedings on 1 February 1999. By decision of the court issued on 23 April 1999, the action was reinstated and the plaintiffs’ lawyer on 28 May 1999 applied to the registrar for the further procedure in the action to be fixed by the court. The action was fixed for directions for 18 June 1999. However, due to an oversight, the lawyers of the parties had not been notified, so the case was fixed for directions for 9 July 1999 and the hearing was fixed for 24 January 2000. On the latter date the hearing was adjourned until 15 February 2000 with the parties’ consent, since, due to the workload of the court that particular day, it would not have been possible to complete the chief examination of the witnesses, as well as to give an opportunity to the parties to file certain documents relevant to the case.
On 15 February 2000 the hearing was adjourned until 6 March at the request of the applicants’ lawyer who was ill.
On 6 March 2000 the hearing was adjourned for directions at the request of the plaintiffs’ lawyer with the applicants’ consent, as the plaintiffs’ amended pleadings had been filed after the time-limit fixed by the relevant court order had expired. The court noted the urgency in dealing with this case and adjourned it until 24 March 2000 for directions in order to give time to the parties to take all necessary corrective measures.
On that date the court fixed the action for a hearing for 26 April. In the meantime, on 20 April 2000, the applicants filed an application to strike out the plaintiffs’ amended pleadings as being out of time. The plaintiffs filed their objection on 11 May 2000 and, on 23 May 2000, the court issued an interim decision dismissing the application and fixing the action for a hearing on 6 July 2000. The plaintiffs proceeded to file a new application to amend their writ and statement of claim on 5 July 2000 with the consent of the applicants’ lawyer. As a result, the hearing of 6 July 2000 was adjourned with the parties’ consent until 18 and 25 October 2000. On 18 October 2000 the hearing was adjourned once again until 25 January 2001 at the written request of the plaintiffs’ lawyer (the letter was countersigned by the applicants’ lawyer).
On 25 January 2001 the hearing was adjourned until 19 and 22 March 2001, following requests from the lawyer of some of the plaintiffs who wished to withdraw from the case, and from the lawyer of the defendant company with respect to the appointment of a new liquidator. Although the applicants’ lawyer expressed his reluctance and indicated the delay in the proceedings, he consented to the adjournment of the case. The court pointed out that, even though the case was old, this was not a determinative factor for the exercise of the court’s discretion when considering a request for adjournment if other grounds existed that justified the adjournment.
In the end, the parties appeared before the court on 4 May 2001 but, after the filing of a substantial number of documents, the hearing was adjourned until 17 and 18 May 2001 with the parties’ consent.
The hearing finally commenced on the former date and then it was adjourned until 31 May 2001, to be continued on 8 and 11 June 2001. In fact it was initially fixed for 5 June 2001 but, at the request of the applicants’ lawyer, it was fixed for 11 June 2002. The hearing was held on the above-mentioned dates and then continued on 13 and 27 June 2001. It was then adjourned until 27 September 2001 with the parties’ consent for the duration of the summer recess in view of the work-load of the court. The parties however had been given the choice by the court of continuing the hearing during the summer recess but they chose to have the hearing continue after the recess. On 27 September 2001 the hearing was adjourned for directions until 9 November 2001, given the death of one of the plaintiffs and pending the procedure required for the administration of his estate, as well as the need to amend the title of the action. On 9 November 2001 the deceased’s lawyer requested an adjournment of twenty days pending the court’s grant of letters of administration to the estate of the deceased. With the parties’ consent the case was adjourned until 4 December 2001 for directions. It was then continuously adjourned with the parties’ consent and on the same grounds from 4 December 2001 until 4 April. At the request of the parties the date of the hearing was then moved to 8 April 2002. The hearing was held on that date and then, on 29 April 2002, it was adjourned until 29 May 2002.
The hearing was concluded on 28 June 2002 and the Limassol District Court reserved its judgment on that date.
C. Civil action no. 702/86, Andreas Tsaggari v. Macedonia Gavrielidou and Others
1. Proceedings before the District Court of Limassol
1. Facts prior to 1 January 1989
On 10 February 1986 civil action no. 702/86 was filed in the District Court of Limassol by a plaintiff against, inter alia, the first three applicants.
Once the pleadings were completed on 8 December 1996, the action was fixed for 15 December 1986. On that date it was fixed for mention for 15 January 1987 and then the hearing was adjourned until 26 May 1987. In the meantime, on 29 January 1987, the applicants filed an application for amendment of their defence and, by order of the District Court of 10 March 1987 (drawn up on 27 April 1987), leave was granted to the applicants to proceed with the necessary amendments, the hearing to be fixed after the amendment had been completed. The applicants filed their amended defence on 4 May 1987. On 29 May 1987 the court fixed the case for mention for 11 September 1987. On the latter date, the action was taken off the trial list following a suggestion by the plaintiff’s lawyer and the concurrence of the applicants’ lawyer in view of the fact that an application for winding-up of the defendant company was pending before the Nicosia District Court. The case was "taken off the court’s trial list to be fixed afresh on the application of either side to the registrar when the case [was] ready to be heard".
Subsequently, two letters were sent to the court. The first one was sent on 29 October 1987 by the applicants’ lawyer informing the court that the winding-up order had been issued against the defendant company and that the plaintiff could only continue the action after obtaining the leave of the court. The second letter was sent on 19 March 1988 from the official receiver requesting the court not to grant leave for the continuation of the action at that particular time.
2. Facts after 1 January 1989
On 9 February 1995 the applicants’ lawyer sent a letter to the court requesting that the action be fixed for a hearing. On 17 February 1995 the court fixed the action for mention for 14 March 1995. On that day, at the parties’ request, the court set the hearing of the action for 7 June 1995. The hearing however was adjourned until 14 November 1995 with the parties’ consent so that certain amendments would be made to the pleadings. An application for amendment to the title of the action in order to join the official receiver as a defendant to the proceedings was filed on 13 July 1995 by the plaintiff. The case was then fixed for 6 November 1995 and was subsequently adjourned until 11 January 1996 at the plaintiff’s request.
In the meantime, on 19 November 1995, the plaintiff withdrew the application requesting the above amendment since he had filed a new one on 11 November 1995 following the death of the third applicant and the consequent need to amend the plaintiff’s pleadings by joining the fourth and fifth applicants to the action as the administrators of the deceased’s estate. On 11 January 1996 by order of the court, leave was granted to the plaintiff to proceed with the amendments and with the action. The amended writ and statement of claim were filed on 29 January 1996 joining the fourth and fifth applicants to the proceedings. The pleadings were completed with the filing of the applicants’ defence on 14 May 1996, and the action was then fixed for directions for 31 October 1997.
However, on that date the applicants’ lawyer was granted leave to withdraw from the case for the same reasons as for action no. 5949/85. The case was then fixed for 3 December 1997 for directions to give the opportunity to the applicants and the defendant company to appoint another lawyer.
On 2 December 1997 the case was adjourned until 4 December in view of the fact that the presiding judge had a different hearing to attend at an another court on 3 December 1997. On the latter date the case was adjourned until 14 January 1998 and then it was adjourned two more times until 25 February 1998 pending the appointment of a lawyer by the applicants and the defendant company. On 25 February 1998 the applicants informed the court that they had appointed a new lawyer and notice of such appointment was given to the court the following day. On 27 February 1998 the hearing was fixed for 28 April 1998.
On that date, one of the defendant company’s lawyers requested leave to withdraw from the case and an adjournment of the hearing. However, the court adjourned the hearing only until the next day and, by an interim decision, it refused the adjournment requested. On 29 April 1998 no appearance was made on behalf of the defendant company and, accordingly, the hearing was fixed for 8 May 1998. In the meantime, on 7 May 1998 the plaintiff informed the court that he had appointed a new lawyer. Thus, on 8 May 1998 the hearing was adjourned until 12 May 1998. However, the day before the hearing, the plaintiff’s lawyer filed two applications, one for the adjournment of the hearing and one for the amendment of his statement of claim. On 12 May 1998 the applicants filed an objection to the plaintiff’s application for adjournment, emphasising inter alia the protracted length of the proceedings. That same day the District Court, by an interim decision, noted the delay in the proceedings and accepted the plaintiff’s request for an adjournment only with regard to the application for amendment. Accordingly it fixed the case as well as the application for 20 May 1998.
Meanwhile, on 18 May 1998, the applicants filed an objection to the amendment requested by the plaintiff. On 20 May 1998 the matter of the application was fixed for a hearing for 5 June 1998. On this date however, the official receiver having just been served with the application for amendment, applied for an adjournment of the hearing. Although both the applicants’ lawyer and the bench expressed their regret, the hearing was adjourned until 26 June 1998. On the latter date the court decided to adjourn the hearing in order to complete the examination in chief of a witness in another hearing. However, in view of the delay in the proceedings, the court decided to hold the hearing on 13 July 1998 during the summer recess.
On 13 July 1998, the hearing of the application on amendment was adjourned until 22 September 1998 on the basis of a legal question raised by the plaintiff on the issue of the court’s jurisdiction, in relation to which proceedings were pending before the Supreme Court. Consequently, the Supreme Court ordered the suspension of the proceedings until the determination of the relevant applications for certiorari and prohibition pending before it, the hearing of which was fixed for 2 November 1998. In view of this, on 22 September 1998 the court adjourned the action until 30 September 1998 for directions, and stated that the proceedings would be automatically adjourned thereafter. On 18 March 1999 the Supreme Court issued a writ of certiorari, nullifying the order issued by the Limassol District Court in 1996 which had granted leave for the continuation of the proceedings against the company defendant. It also issued a prohibition order, prohibiting the plaintiff from proceeding with the action against that defendant. However, the Supreme Court declared that the proceedings against the applicants could continue. The applicants appealed against this part of the judgment on 27 April 1999, but subsequently withdrew it. On 17 October 2000, the applicants’ lawyer applied by letter to the registrar of the court to have the case fixed. Accordingly, the court fixed the case for directions for 7 November 2000 and, on that date, for 16 November 2000.
On the latter date the judge to whom the case was assigned decided to seek instructions from the Administrative President of the District Court as to what course to follow in view of the decision of the Supreme Court and as to whether he should be assigned to this case since the hearing had already started before another judge, the former President of the Limassol District Court. On 23 November 2000 the latter suggested to the Administrative President that there be a de novo hearing before another judge. Accordingly, on 27 November 2000, the President of the District Court fixed the case for 1 December 2000 to hear what the parties had to say on the matter. On that date, in the light of the objections raised by the applicants’ lawyer in relation to a de novo hearing, the President of the District Court decided that the hearing should continue before the judge who had already heard part of the action, and that the application for amendment be assigned to another judge.
The judge dealing with the application for amendment fixed the hearing for 17 January 2001. An application for adjournment of this hearing, filed by the plaintiff on 15 January 2001, was turned down by the judge who proceeded with the hearing and issued his decision on 25 January 2001, dismissing the application for amendment.
Following a letter by the applicants’ lawyer dated 26 January 2001 to the registrar of the court, on 22 February 2001 the court fixed the action for directions on 29 March 2001 and then for 3 May 2001, on which date the continuation for the hearing was fixed for 14 June 2001. In the meantime, on 8 May 2001 the plaintiff lodged an appeal against the decision of the District Court dismissing the application for amendment.
At the request of the plaintiffs’ lawyer, the hearing was adjourned for 11, 13, 16 and 17 July 2001, leave having been granted by the President of the District Court for its continuance during the summer recess. On 19 June 2001 however, the plaintiff filed two applications requesting, firstly, an adjournment of the hearing until the determination of his appeal against the order of the same court dismissing his application for amendment and, secondly, the suspension of the proceedings until the determination of that appeal. The applicants filed their objections to both these applications on 6 July 2001. Nevertheless, the hearing of the action was adjourned once again in view of the fact that the official receiver intended to file an application for the amendment of his defence. This application was filed on 9 August 2001, the amendment was allowed on 13 September 2001 and the amended defence was filed on 18 October 2001. Then the court fixed the hearing for 7 December 2001.
The plaintiff’s lawyer requested an adjournment on the grounds that his appeal against the District Court’s order dismissing his application for an adjournment was pending before the Supreme Court. In the light of this, the case was adjourned until 20 December 2001 for directions. On 17 December 2001 the District Court was informed that the Supreme Court had reserved its judgment and thus the action was adjourned until 10 January 2002 for directions. It was subsequently adjourned on the same grounds twice.
On 8 February 2002 the Supreme Court dismissed the plaintiff’s appeal, and on 21 February 2002 the District Court fixed the hearing for 8 March 2002, to be continued on 11, 12 and 13 March 2002.
By decision dated 23 May 2002, the District Court dismissed the action concerning the applicants. It concluded that they were not bound by the relevant contracts and that no trust had been created between them and the plaintiff. However, it found in favour of the plaintiff regarding the defendant company.
2. Proceedings before the Supreme Court
On 2 July 2002 the plaintiff filed an appeal against the decision of the Limassol District Court.
In a judgment dated 21 April 2003, the Supreme Court rejected the plaintiff’s appeal and confirmed the findings of the District Court in the case.
The applicants complain under Article 6 § 1 of the Convention about the length of two sets of proceedings before the Cypriot courts. Furthermore, the applicants complain about the lack of an effective remedy with regard to the excessive length, contrary to Article 13 of the Convention. Finally, the second, third, fourth and fifth applicants complain under Article 1 of Protocol No. 1 that, as a consequence of the excessive length of the proceedings and the failure of the courts to conclude them within a reasonable time, they have not been able to use or develop their property.
A. The Government’s preliminary objections
1. As to the victim status of the first, third, fourth and fifth applicants
The Government submit that the first applicant cannot be considered as a "victim" within the meaning of Article 34 of the Convention. They maintain that although at the time of institution of the proceedings she was the registered owner of half a share in the relevant plot of land, she ceased to have any rights in that property from 26 January 1998 onwards when she transferred her share to her two sons. The latter are not parties to the domestic proceedings nor to those before the Court. In this connection, they argue that despite the fact that the first applicant has remained in name a party to the domestic proceedings, in reality she had ceased to have any proprietary rights in the land and thus, in any of the apartments in the block erected on it. Consequently, any declaratory judgment that may be issued against her in the proceedings concerning the binding nature of the contracts of the relevant flats, the transfer of the flats or a trusteeship vis-à-vis each plaintiff, would not bind her as she does not have any proprietary interest in the relevant land.
Furthermore, the Government state that the third applicant, who died in 1995, cannot be considered as a victim within the meaning of Article 34 of the Convention.
Concerning the fourth and fifth applicants, who were joined in the proceedings in 1996 as administrators of the third applicant’s estate, the Government claim that they cannot be considered as victims of a violation within the meaning of Article 34 of the Convention, irrespective of whether they are the heirs of the third applicant. In this connection, the Government contend that the fact that these applicants were joined to the domestic proceedings does not by itself mean that they also had a personal interest in their outcome, since they were only parties with a representative status, i.e. as administrators of the third applicant’s estate and, thus, would not gain or lose from the outcome of the proceedings (relying on Lefkos P. Georgiades v. Cyprus, no. 62233/00, 24 September 2002, and Kofler v. Italy, no. 8261/78, Commission’s decision of 9 October 1982, 30 DR 5). The nature of the complaints of these applicants in the instant application are such that only those who have any proprietary interest in the land and the relevant flats could be considered as victims of a violation of the rights guaranteed under the Convention.
Alternatively, the Government state that even if the fourth and fifth applicant are shown to be the heirs of the third applicant, their personal interest in the proceedings only commenced in 1996 when they were joined as defendants to the proceedings.
Although the applicants state that they disagree with all the objections raised by the Government, they do not expressly address those arguments concerning the locus standi of the first and third applicants. As regards the fourth and fifth applicants, the applicants submit that they are also heirs of the third applicant and must therefore be considered victims within the meaning of Article 34 of the Convention.
The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1288, §§ 56-59, and Valmont v. the United Kingdom (dec.), no. 36385/97, decision of 23 March 1999).
The Court reiterates that the concept of “victim” as used in Article 34 of the Convention must be interpreted autonomously and independently of domestic law concepts, such as a capacity to bring or take part in legal proceedings (Greek Federation of Customs Officers, Gialouris and others v. Greece, no. 24581/94, Commission decision of 6 April 1995, DR 81-B, p. 123).
The Court further recalls that the term “victim” refers to the person directly affected by the act or omission at issue, the existence of a violation being conceivable even in the absence of prejudice.
As regards the first applicant, the Court observes that she transferred her share in the relevant property on 26 January 1998 to her sons who are not parties to the proceedings before the domestic courts or this Court. In spite of this transfer, the Court points out that she remained a party to the proceedings. Indeed, in the second set of proceedings she remained as the first defendant both in the decision of the Limassol District Court and the decision of the Supreme Court. According to the case-law of the Court, the fact that the final judgment was in the favour of the applicants, does not deprive her or any of the applicants of victim status for the purposes of a length complaint (Byrn v. Denmark, no. 13156/87, Commission decision of 1 July 1992, DR 76, p. 5).
The Court considers that, since the first applicant’s complaints relate merely to the length of the domestic proceedings and a lack of remedy thereto, and not to property rights under Article 1 of Protocol No. 1 to the Convention, she can claim to have been directly affected by the allegedly excessive length of the proceedings to which she is a party and, thus, can be considered a "victim" within the meaning of Article 34 of the Convention.
For these reasons, and to that extent, the Court dismisses the Government’s objection with respect to the first applicant.
Concerning the third applicant, the Court notes that he died on 18 May 1995 during the domestic proceedings but before the instant application was lodged. In this connection, the Court points out that an application cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Yasa v. Turkey, no. 22495/93, Commission’s report of 8 April 1997, § 88). Therefore, it follows that the third applicant cannot claim to have been a victim of a violation of his rights under the Convention and Protocol No. 1, and that the application insofar as it relates to the complaints made on his behalf, is incompatible ratione personae with the provisions of the Convention. This aspect of the case must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
As regards the fourth and fifth applicants, the Court notes that they were joined to the domestic proceedings on 11 January 1996 (civil action 702/86) and 19 June 1996 (civil action 5949/85) as the administrators of the estate of the third applicant. In this connection, the Court observes that the fourth applicant is the wife of the deceased and the fifth applicant is one his children. They are also two of the four heirs to his estate. On 28 August 2001, more than five years after joining the domestic proceedings, they applied to the Court in their capacity as administrators of the deceased’s estate as well as in their personal capacity.
The Court notes that a person with the required standing as a next-of-kin or an heir of the estate of the deceased may bring the application as a rightful successor or on behalf of the deceased and, in certain circumstances, on his own behalf - in his own name as a victim (McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; X v. France, judgment of 31 March 1992, Series A no. 234-C, § 26; X v. Federal Republic of Germany, no. 4427/70, Commission decision of 25 May 1971, Collection of Decisions, vol. 38, pp. 38-39; Baader, Meins, Meinhof and Grundmann v. Federal Republic of Germany, no. 6166/73, Commission decision of 30 May 1975 DR 2, p. 66).
In the present case the Court agrees with the Government that the fourth and fifth applicants had not joined the domestic proceedings in their personal capacity. Nonetheless, ever since the third applicant’s death, these applicants, in addition to their status as administrators of his estate, became two of his legitimate heirs. In that connection, the outcome of both sets of proceedings in which they acted as administrators inevitably directly affects them as heirs to his estate, including the property which is in question. Furthermore, as noted above in relation to the first applicant, the fact that the final judgment was in their favour does not deprive them of victim status for the purpose of their complaints.
Therefore, the Court considers that these applicants have a legitimate legal and material interest in the complaints before this Court and consequently, it can be said that the fourth and fifth applicants had, at least from 11 January 1996 (civil action 702/86) and 19 June 1996 (civil action 5949/85), a sufficient personal interest in the outcome of the proceedings to enable them to be considered “victims” within the meaning of Article 34 of the Convention.
For these reasons, and to that extent, the Court dismisses the Government’s objection with respect to the fourth and fifth applicants.
2. As to non-exhaustion of domestic remedies
The Government submit that the applicants failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and consequently the instant application should be declared inadmissible.
They maintain that the applicants’ complaints under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 could have been raised before the domestic courts. In particular, the Government claim that the applicants could have filed a civil action in the domestic courts against the Government, alleging a violation of their right under Article 30 of the Cypriot Constitution to have their civil rights and obligations determined within a reasonable time and claiming damages. In this connection, the Government state that the Cypriot Constitution guarantees property rights as well as the right to a fair hearing (Articles 23 and 30). Protection of these rights is effectively secured under Article 35 of the Cypriot Constitution which imposes an obligation on inter alia the judicial authorities to ensure the efficient application of all fundamental rights and liberties guaranteed under the Constitution. Furthermore, the Government point out that compensation in respect of a violation of a right protected under the Constitution would be awarded even if the victim of the violation did not suffer material damage.
In support of their arguments, the Government rely on the judgment of the Supreme Court in the case of Yiallourou v. Evgenios Nicolaou (8 May 2001, civil action no. 9931) finding a violation of the right to the plaintiff’s private life, as guaranteed by the Cypriot Constitution. The Government also rely on a statement of claim filed in the District Court of Nicosia (civil action no. 3216/02) on 8 April 2002 in which the plaintiffs complain of a violation of their right to a fair hearing under Article 30 of the Cypriot Constitution and Article 6 § 1 of the Convention, in that the proceedings concerning them were not determined within a reasonable time.
The applicants dispute the arguments of the respondent Government. They distinguish the instant application from the case of Yiallouros v. Nicolaou referred to by the Government, since the former concerned a violation of the right to private life in an action between individuals and not an action arising out of the Government’s failure to administer justice within the reasonable time requirement of Article 6 § 1 of the Convention. They also state that the example set by civil action 3216/2002 could not have been followed by them since it was lodged one year after the applicants filed the instant application.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available, efficient and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used.
The burden of proving the existence of effective and sufficient remedies lies upon the State invoking the exception (Quinn v. Ireland, no. 36887/97, Commission decision of 21 September 1999). It has to indicate to the Court with sufficient clarity the remedies to which the applicant has not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 68, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, § 35).
Furthermore, the Court emphasises that the application of the exhaustion of domestic remedies rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means in particular that the Court must take realistic account, not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see Akdivar and Others v. Turkey op. cit., § 69, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, § 77).
As regards the application of Article 35 § 1 to the facts of the present case, and the possible remedy cited by the respondent Government, the Court considers that the latter’s assertions cannot suffice to justify the objection they have raised.
At the outset the Court notes that the Government submitted that there was a specific legal avenue whereby the applicants could have complained about the length of the proceedings and the negative repercussions thereof on their property rights. They claimed that the applicants could have raised their complaints before the domestic courts by filing a civil action against the Government, alleging a violation of their rights under Articles 23 and 30 of the Constitution.
However, the Court observes that the Government’s submissions regarding this point are very general. Although the two examples cited by the Government illustrate the possibility of recourse before the domestic courts in respect of allegations concerning violations of rights protected under the Cypriot Constitution and the Convention, they do not indicate whether the applicants in the present case could in reality obtain relief – either preventive or compensatory – by having recourse to this remedy. The Government have not made reference to specific, established case-law on the availability of damages for delay already suffered, or on the possibility of such an action being preventative of further delay (Kudła v. Poland [GC], no. 30210/96, § 159, ECHR 2000-XI). It was not suggested that the remedy referred to could have expedited the determination of the cases against the applicants or provided them with adequate redress for delays that had already occurred and their consequences. Nor did the Government supply convincing examples from domestic practice showing that, by using the means in question, it was possible for the applicants to obtain such a relief or any compensation in respect of their complaints.
In these circumstances, the Court considers that the Government have failed to show that, at the relevant time, an effective domestic remedy was available to the applicants in respect of the length of their domestic proceedings and, thus, those complaints cannot be rejected on this basis.
Accordingly, the Court concludes that, in the absence of convincing explanations from the respondent Government and in light of the above considerations, the application cannot be rejected for failure to exhaust domestic remedies. The Court thus dismisses the respondent Government’s objection on this point.
1. The applicants allege a violation of Article 6 § 1 of the Convention, which reads insofar as relevant as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government aver that the domestic courts examined the proceedings with reasonable expedition and did not omit any measure that they may have been reasonably expected to take. They maintain that although the judicial authorities were responsible for some of the delay in the proceedings, adjournments of the hearings were always done in order to complete the examination of witnesses in other cases. Moreover, looking at the overall conduct of the parties in the domestic proceedings, the Government submit that the judicial authorities do not have primary responsibility for the length of the proceedings in the instant application.
In this context, the Government note that the hearings and other relevant procedures were repeatedly adjourned on the motion of either party to the proceedings, with the consent of or without any objection by the other, for a number of different reasons. These included the filing of a considerable number of diverse applications by the parties (sometimes just before the hearings of the main action were scheduled or after the set deadlines), the withdrawal of lawyers and the appointment of new ones, the suspension of proceedings pending the completion of interim applications, and the outcome of other relevant actions or proceedings before the Supreme Court. They also claim that the parties had every right to file interim applications in the proceedings, in exercise of the rights afforded to them by the rules of civil procedure for the purpose of effectively pursuing their claims, defence or change of lawyer.
The Government submit that they should not be held responsible for the delay in the proceedings which was either in many instances necessary or due to the tardiness of the parties in filing applications, amending their pleadings or for requesting or consenting to adjournments.
The applicants dispute these submissions and state that the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. They point out that the two procedures commenced on 17 October 1985 and 10 February 1986 respectively, but no judgment has been delivered yet in the first proceedings, which are still pending at the first instance stage. Thus, the overall duration of proceedings has been more than 18 years and 17 years respectively.
In this connection, they argue that neither the complexity of their case nor their own conduct can be held to be the principal reasons for the excessive length of proceedings. On the contrary, they state that most of the delay in the proceedings was attributable to the respondent Government at least from 1 January 1989, the date on which Cyprus accepted the right of individual petition, amounting to more than fourteen years in each case. They aver that the delay attributed to the respondent Government after that date constitutes in itself a violation of Article 6 § 1 of the Convention (relying on Mavronichis v. Cyprus, judgment of 24 April 1998, Reports 1998-II, Louka v. Cyprus, no. 42946/98, 2 August 2000 and Alithia Publishing Company v. Cyprus, no. 53594/99, 11 July 2002).
They submit that there were a number of reasons for the delay in the proceedings. These primarily consisted of applications for adjournments or for amendments of pleadings by the plaintiffs, and the inability of the courts to deal with the case.
The applicants maintain that, despite the letters of complaint they sent to the Limassol District Court and the Supreme Court about the delays in both sets of proceedings and their requests for their speedy completion, the hearing of the second case was not completed until 23 May 2002, whereas, in the first set, no decision has been issued yet. In addition, the applicants state that the Government continue their delaying tactics in a provocative manner by obtaining three extensions in submitting their observations on the admissibility and merits of the above application before the Court.
Although the applicants accept that before 1 January 1989 a small part of the delay was due to adjournments which they had requested, they contend that this cannot alone explain the length of time and the excessive overall delay in the proceedings, especially after the above date. They argue that the Government have actually admitted in their observations that the courts were responsible for some of the delays in the proceedings.
Furthermore, the applicants submit that it is the Government’s duty to organise their legal system in such a way so that the courts can guarantee to everyone the right to a final decision within a reasonable time in the determination of their civil rights and obligations (relying on Caillot v. France, no. 36932/97, § 27, 4 June 1999). Thus, they have to ensure that cases are conducted with sufficient expedition and that adequate resources are made available to the courts to avoid the creation of a backlog of cases. Relating to this and in response to the Government’s pleadings, they note that the Cypriot courts failed to invoke the relevant rules of civil procedure when necessary in order to expedite the proceedings.
Thus, the applicants allege that, in view the delays imputable to the Government and the overall duration of the proceedings, the reasonable time requirement under Article 6 § 1 was not satisfied.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of these complaints is required.
2. The applicants complain of a lack of an effective remedy with regard to the allegedly excessive length of the proceedings before the domestic courts contrary to Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government repeat the arguments they submitted in relation to their preliminary objection of non-exhaustion of domestic remedies under Article 35 § 1 of the Convention, maintaining that the applicants could have filed a civil action against the Government complaining of a violation of their rights under the Cypriot Constitution to have their civil rights and obligations determined within a reasonable time, and claiming damages. In support of their arguments, the Government rely on the same authorities as those relied on in their preliminary objection (judgment of the Supreme Court in the case of Yiallourou v. Evgenios Nicolaou (8 May 2001, civil action no. 9931) and a statement of claim filed in another action in the District Court of Nicosia (no. 3216/2002) on 8 April 2002.
The applicants contend that the inability of the Cypriot Courts to offer them an effective remedy in respect of the excessive length of proceedings in both actions constitutes a violation of this provision in conjunction with Article 6 § 1 of the Convention. In this connection, they repeat the arguments they submitted concerning the Government’s preliminary objection as to non-exhaustion of domestic remedies.
Furthermore, they maintain that, according to the Court’s case-law, the remedy required by Article 13 of the Convention does not need to be judicial and satisfy all the criteria of Article 6 § 1 of the Convention (relying on Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, § 77, and M and EF v. Switzerland, no. 12573/86, Commission decision of 6 March 1987, DR 51 p. 283). A different interpretation would absorb Article 13 within Article 6 § 1 of the Convention and would have the effect of making all Convention rights "civil rights" within its terms (relying on Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 33). Finally, they state that a failure to have recourse to a remedy that meets the requirements of Article 13 will not necessarily amount to a failure to exhaust domestic remedies (relying on Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, § 113).
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. The second, fourth and fifth applicants complain of a violation of Article 1 of Protocol No. 1, which provides as follows:
“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.”
The Government submit that the proceedings, as well as their length, did not have any negative repercussions on the property rights of the applicants. The fact that the proceedings were pending against the applicants, did not prevent them from transferring or mortgaging their shares in the relevant property. Indeed, they aver that whilst the proceedings were pending, the first applicant transferred her share in the property in 1998 to third parties and both the second and third applicant had mortgaged their shares for loan purposes (in 2001 and 1993 respectively). In this connection, they also note that no interim order has been issued in the proceedings, restraining the applicants from transferring their property to third parties.
Furthermore, the Government submit that the fact that the relevant apartments had not been registered in the applicants’ names was not attributable to the proceedings pending against them or their length. In this context, the Government point out that the applicants never applied to the Land Registry in order to register the relevant apartments in their names, as well as other apartments in the same block which were not the subject matter of the proceedings, and of which they had taken possession in 1983. The reason for this was that a certificate of approval of the building had not been issued by the competent authority due to the illegal construction of a restaurant on the ground floor of the block. In any event, the Government aver that, even if a declaratory judgment was issued in favour of the plaintiffs in the proceedings and against the applicants, this could not result in any specifically enforceable obligation of the latter to transfer the flats to the former, and thus, the fact that the proceedings were pending, did not prevent the applicants from registering the apartments in their names and dealing with them as they wished.
Finally, the Government claim that the applicants never took any steps to take possession of the flats from the plaintiffs and never raised any counterclaim for this purpose or to the effect that they were entitled to possession.
The second, fourth and fifth applicants dispute the above arguments and maintain that, as a consequence of the excessive length of both sets of proceedings and the failure of the courts to conclude them within reasonable time, they have not been able to use or develop their immovable property for more than 14 years. They submit that this amounts to a continuous interference with their property rights and thus constitutes a violation of their right to the peaceful enjoyment of their possessions safeguarded by Article 1 of Protocol No. 1.
Furthermore, the applicants aver that property rights, including the right to develop one’s property in accordance with applicable laws and regulations, fall within the ambit of "civil rights" under Article 6 § 1 of the Convention, and thus the normal requirements of this provision, including the reasonable time requirement, also apply to proceedings concerning property rights (relying on Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, and Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192).
The applicants submit that the proceedings have considerably diminished the market value of their property affecting its mortgage value as well as any prospect of sale. They state that what is essentially in dispute is the ownership of the shares in the relevant building. Consequently, no prudent person would buy any share in this property from the applicants given a possible decision that the latter do not have the rights to it.
In addition, the applicants argue that, although the proceedings have not directly affected the right to transfer the property, they point out that the official receiver had sent the first applicant a letter dated 14 April 1988 calling on her not to transfer the property in question. They also note that two interim orders were issued on 20 May 1985 and 5 September 1986, in relation to the properties, in two other sets of proceedings brought against the applicants (civil action nos. 2918/85 and 5992/86). As regards the transfer of the first applicant’s share in the property in 1998, the applicants state that this was made by way of a gift to her two sons and that this transfer, as well as the mortgaging of the shares of the second and third applicants for loan purposes, are not relevant to their argument that the length of proceedings in the instant application had negative effects on the applicants’ property rights, contrary to Article 1 Protocol No. 1.
Finally, the applicants contend that they had made efforts to regain possession of the property and, contrary to the Governments’ submissions, they could not and cannot apply to the Land Registry for the issue of separate title deeds in view of the fact that the building in question has not yet been completed.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares that part of the application concerning the third applicant inadmissible;
Declares the remainder of the application admissible, without prejudging the merits of the case.
S. Dollé J.-P. Costa
GAVRIELIDOU AND OTHERS v. CYPRUS DECISION
GAVRIELIDOU AND OTHERS v. CYPRUS DECISION