[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF DOUGLAS v. CYPRUS
(Application
no. 21929/04)
JUDGMENT
STRASBOURG
17
July 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Douglas v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21929/04) against the
Republic of Cyprus lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Mr Derek Douglas (“the
applicant”), who is a British and Cypriot national, on 1 June
2004.
- The
Cypriot Government (“the Government”) were represented by
their Agent, Mr P. Clerides, Attorney-General of the Republic of
Cyprus.
- On
11 January 2006 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3). The Government of the United Kingdom were also given notice of
the application. They informed the Court that they did not wish to
intervene in the proceedings.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Nicosia. The applicant was
married on 2 June 1974 in Nicosia. His marriage was dissolved on
16 March 1998.
- On
6 August 1999 his former wife lodged an application (no.143/99)
with the Nicosia Family Court for adjudication of certain property
disputes between her and the applicant. On the same date the court
issued an interim injunction prohibiting the applicant from selling,
transferring or otherwise disposing of certain of his properties
consisting of an apartment, a plot of land and two bank accounts. On
7 January 2000 the applicant submitted his defence and
counter-claims. He claimed that he and his former wife had entered
into an agreement in 1997 for the settlement of any potential
property dispute. On 3 April 2000 his former wife filed her
response to the applicant's defence, and her defence in respect of
his counter-claim.
- The
case was adjourned on at least two occasions at the request of the
applicant. The hearing of the interim order application began on 8
March 2002. On 19 November 2002 it was decided that the
prohibitory injunction would remain in force pending the final
determination of the proceedings. An amendment was made in respect of
the applicant's plot of land, which would only be bound in respect of
two thirds of the undivided share of the property.
- On
28 November 2002, the applicant lodged an appeal against the
injunction. He maintained that the court had erred in law in issuing
it solely on the basis of the affidavit of his former wife and
without further evidence substantiating her allegations. In another
ground of appeal he complained about the delay that had occurred in
the proceedings, which had severely restricted his professional
activities.
- On
12 March 2004 the Supreme Court dismissed the appeal and upheld the
injunction as the applicant's former wife had entered into sufficient
detail in her affidavit to justify non inclusion of further relevant
documents. The court nevertheless expressed its concern about the
delay in the proceedings.
- The
examination of the main application (no.143/99) by the Nicosia Family
Court began on 26 September 2003. Of the 29 sittings held
between 23 October 2003 and 18 November 2004 at least one was
adjourned at the applicant's request.
- On
11 March 2005, the Nicosia Family Court ordered the applicant to pay
41,000 Cypriot pounds (CYP) plus interest to his former wife. The
court dismissed the applicant's submission that an agreement had been
concluded between himself and his former wife. The counter-claim
lodged by the applicant was dismissed in its entirety. Moreover, the
court considered that the applicant's evidence had been unreliable
and given in bad faith. It noted that he had been unable to control
himself during the proceedings and had become disrespectful towards
the court and his former wife's counsel.
- On
11 April 2005, the applicant lodged an appeal with the Supreme Court.
- On
13 April 2005, the applicant's former wife lodged with the Nicosia
Family Court an application by summons requesting a 'garnishee order'
(third party debt order). The application was set for hearing on
22 April 2005. On 28 April 2005 the applicant filed an objection
and maintained that the application had been filed in bad faith.
- On
28 April 2005 the applicant applied for suspension of the execution
of the court's decision dated 11 March 2005, until the examination of
his appeal. This was set for hearing on 19 May 2005. On 16 May
2005 the applicant's wife objected to his application as the
applicant had not complied with the aforementioned court order.
- On
17 June 2005 the Nicosia Family Court, following a hearing, dismissed
the application for suspension of the court's decision dated 11 March
2005. The court declined to grant the requested order in light of the
applicant's unreliability and the evident danger that his former wife
would remain without a remedy in the event that the order was
granted. The court rejected the applicant's allegations that the
application was made in bad faith and found his claim that he would
face considerable financial difficulties in the event of non
suspension unsubstantiated. The application was accordingly dismissed
with legal costs awarded to the applicant's former wife.
- On
the same date the court granted the garnishee order. Accordingly the
applicant's bank was ordered to pay his former wife the amount of CYP
41,000 with 8% interest from 6 August 1999 until payment and
expenses. The court ordered the applicant's former wife to guarantee
the return to the applicant of the whole amount payable upon the
execution of the court's decision dated 11 March 2005 in the
event that his appeal was successful. The guarantee would be
renewable until the completion of the appeal proceedings. On 27 June
2005, the applicant lodged an appeal with the Supreme Court against
the decision of the Nicosia Family Court dated 17 June 2005.
- On
23 March 2007 the Supreme Court granted the applicant's appeal
against the family court's judgment of 11 March 2005 and against its
order of 17 June 2005. It noted that the first-instance court
had found the applicant an absolutely unreliable witness and his
evidence was, as such, dismissed in its entirety. It further noted
that the first-instance court had based its conclusion as to the
applicant's reliability as a witness on various factors including his
behaviour in and outside the court room. It was held that the
first-instance court ought not to have taken those factors into
account in the assessment of the applicant's evidence and therefore
the case was remitted for a retrial, but only in respect of the
former wife's claim over the applicant's plot of land.
- On
29 February 2008 judgment was issued by the family court in favour of
the applicant's former wife. The court noted that the proceedings had
been delayed by the applicant, who failed to appear before the court
on two occasions. It was found that no agreement had been concluded
between the applicant and his wife as to any potential property
dispute. Given his former wife's contribution to his enrichment
during the period of their wedlock it was held that she was entitled
to a third of the value of his plot of land.
- On
14 March 2008 the applicant lodged an appeal against the decision of
the family court before the Supreme Court. These proceedings are
currently pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads 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 contested that argument.
- The
period to be taken into consideration began on 6 August 1999 and has
not yet ended. It has thus lasted 8 years and approximately 10 months
for three levels of jurisdiction while a number of interim decisions
were adopted at first instance and on appeal.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
justifying the delay in the present case. Having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 8 of the Convention and
Article 1 of Protocol No. 1 that the proceedings had infringed his
right to the peaceful enjoyment of his possessions. He also invoked
Articles 3, 6 § 3 (c), 7 and 13 of the Convention
without further explanation and at the time of submission of his just
satisfaction awards.
- Having
regard to all the material in its possession, and in so far as the
matters complained of were within its competence, the Court finds
that they do not disclose any appearance of a violation of the
applicant's rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant claimed CYP 671,200 in respect of pecuniary damage and CYP
200,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. It
also considers the applicant's claim in respect of non-pecuniary
damage excessive. Ruling on an equitable basis, it awards the
applicant EUR 4,000 in respect of non-pecuniary damage.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
