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FIRST
SECTION
CASE OF A. J. HADJIHANNA BROS (TOURIST ENTERPRISES) LTD &
HADJIHANNAS v. CYPRUS
(Application no. 34579/05)
JUDGMENT
STRASBOURG
18
January 2007
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 A. J. Hadjihanna Bros (tourist Enterprises) Ltd
& Hadjihannas. v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34579/05) 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 a company, A. J. Hadjihanna Bros (Tourist Enterprises) Ltd, and a
Cypriot national, Mr A. Hadjihannas, on 8 September 2005.
- The
applicants were represented by Mr P. Petrakis, a lawyer practising in
Nicosia. 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 communicate the complaint concerning the length of
the proceedings to the Government. Applying Article 29 § 3 of
the Convention, it decided to rule on the admissibility and merits of
the application at the same time.
THE FACTS
- The
first applicant is a company registered under Cypriot law. The second
applicant was born in 1941 and lives in Paralimni.
- The
facts of the case, as submitted by the parties and as derived from
the minutes of the proceedings, may be summarised as follows.
A. Proceedings before the District Court of Nicosia
- On
23 September 1997 a civil action (no. 11581/97) was lodged
against the applicants before the District Court of Nicosia for the
payment of the amount of 15,000 Cypriot pounds (CYP), plus interest
at a rate of 9 per cent from 31 December 1990 until discharge of
the debt. The above amount was allegedly due by the applicants on the
basis of a loan which the plaintiff had granted to them and which was
evidenced by a bond signed in the customary form. The second
applicant had signed the relevant bond as a guarantor.
- On
17 November 1997 the plaintiff filed the notice of appearance.
- On
8 January 1998 the plaintiff filed an application for a summary
judgment in view of the applicants' failure to file their defence. On
30 January 1998 the application was fixed for mention for 20
February 1998 and then for proof for 13 March 1998. In the meantime,
on 9 March 1998, the applicants filed an objection to the above
application. On 13 March 1998 the application was fixed for hearing
for 22 May 1998 but was adjourned on that date following a written
request which had been in the meantime submitted by the plaintiff.
The application was fixed for 28 September 1998 and then for 13
November 1998. It was dismissed on the latter date.
- On
27 November 1998 the applicants filed their defence and on 8 December
1998 the plaintiff applied to the court for the case to be fixed. On
the same day the plaintiff filed his reply to the applicants'
defence.
- On
14 December 1998 the case was fixed for 27 January 1999. On the
latter date it was set for hearing for 1 June 1999. In the meantime,
on 25 May 1999, a notice for admission of documents was filed by
the plaintiff.
- From
1 June 1999 until 22 November 2000 the case was adjourned three
times. On the latter date, it was fixed for programming for
15 December 2000 due to the trial judge's absence. On 15
December 2000 the court fixed the hearing for 8 May 2001 and on that
date for 23 October 2001. On the latter date the case was adjourned
by the court until 11 February 2002 due to the appointment of a
new lawyer by the plaintiff.
- On
11 February 2002 the court set the case for 19 June 2002 since it had
continuing hearings in two criminal cases. On the latter date the
case was adjourned until 10 December 2002 due to a continuing hearing
in a criminal case which the Supreme Court had instructed should be
tried on a daily basis.
- In
the meantime, on 29 November 2002, the plaintiff filed an ex parte
application for summoning witnesses. The court issued an order in
this respect on the same day.
- The
hearing of the case commenced on 10 December 2002 and was then set
for 22 January 2003. On that date it was adjourned until 25 February
2003 at the plaintiff's request for the reason that his lawyer was
ill. The applicants' lawyer did not object to the adjournment but
requested costs. These were granted by the court.
- The
hearing of the case was concluded on 18 April 2003. It appears that,
in total, four hearing sessions were held. Judgment was reserved on
the above date.
- Furthermore,
within this period, both parties filed notices for admission of
documents at the hearing and the applicants filed an ex parte
application for the summoning of witnesses. The court issued an order
in respect of the latter application on the same day of its lodging.
- The
Nicosia District Court delivered its judgment on 25 November 2004. It
held that the relevant bond was valid and, thus, the applicants had
to pay the plaintiff the amount of CYP 15,000 with interest at a rate
of 9 per cent per annum. The interest was to be paid from 12 April
1990 until the aggregate interest reached the sum of CYP 15,000 and
not until settlement of the amount. In accordance with the
legislative provisions in force at the relevant time the amount of
interest could not exceed the amount owed on the basis of the
original loan.
B. Proceedings before the Supreme Court
- On
4 January 2005 the applicants lodged an appeal with the Supreme Court
against the first instance judgment (civil appeal no. 2/05). In their
grounds of appeal the applicants challenged the first instance
judgment and the District Court judge's jurisdiction. In respect to
the latter, they maintained that the trial judge had awarded an
amount which exceeded his jurisdiction under law.
- These
proceedings are currently pending. In this respect the applicants
stated that the appeal had not yet been fixed for hearing.
C. Concurrent proceedings concerning stay of execution
- In
the meantime, on 21 January 2005, the applicants filed an application
for stay of execution of the judgment of the District Court of
Nicosia, pending the determination of their appeal or, alternatively,
any other order and/or remedy. On the same day, the court granted a
temporary stay of execution until the hearing of the application.
- On
14 February 2005 and 3 March 2005 the applicants filed notices of
objection to the above application. On 7 March 2005 the plaintiff
filed an ex parte application concerning the cross-examination
of the applicants.
- The
application was heard on 4 March 2005 and was dismissed on 28
March 2005. The court considered that when balancing the facts
and the conflicting rights at stake, if the plaintiff ended up
winning the appeal, he would not receive more than the amount he
would have taken with the execution of the first judgment in the
light of the applicable law restricting interest to less than the
total amount of capital owed. The court thus found that granting the
application would in effect deprive the plaintiff, who had won at
first instance, of the benefits of his success. Moreover, the court
considered the applicants' prospects of success regarding their
appeal in the main proceedings and found that the applicants had
failed to establish that they had a good chance of succeeding. The
court considered that their grounds of appeal were, at least prima
facie, unfounded. In this connection, the court noted that the
applicants had not put forward any evidence proving that the first
instance judge had not had jurisdiction when he had tried the case.
Furthermore, the court noted the second applicant had made a very
negative impression when he had given testimony. His allegations had
been held to be false and unreliable. Finally, the court emphasised
that none of the applicants' arguments raised significant issues.
- On
11 April 2005 the applicants filed an application by summons with the
Supreme Court for stay of execution of the judgment of the District
Court of Nicosia pending the determination of their appeal. On
20 April 2005 the plaintiff gave notice that he would
object to the application.
- On
22 April 2005, the applicants filed an ex parte application
with the Supreme Court requesting the temporary stay of execution of
the judgment until the hearing of their application by summons for
stay was determined. The ex parte application was heard and
dismissed on 25 April 2005. The Supreme Court noted that an
application by summons had been already filed with the same reasoning
and the hearing of which had been fixed for 23 June 2005 in order for
the plaintiff/respondent to lodge an objection. The court found that
in view of the fact that the plaintiff/respondent had been given a
right to be heard in relation to the application by summons, the ex
parte application could not be accepted.
- On
23 June 2005 the applicants informed the Supreme Court that the first
instance judgment had been executed following the dismissal of their
application for a temporary stay. Consequently, the applicants
withdrew their application of 11 April 2005. Costs were granted in
the plaintiff's/respondent's favour.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
- The applicants 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 fair ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 23 September 1997 and
has not yet ended. According to the last
information received by the Court on 16 October 2006, the proceedings
were still pending before the Supreme Court on that date. They have
thus already lasted nine years and twenty-five days for two levels of
jurisdiction.
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
applicants alleged that there had been long periods of delay in the
proceedings attributable to the domestic courts and that the overall
length of proceedings was excessive.
- The
Government argued that the domestic courts had examined the case with
reasonable efficiency and that there had not been any unreasonable
delay in the proceedings.
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court observes that the case does not appear as such to have been
particularly complex factually or legally. Furthermore, there were no
major delays attributable to the applicants. The Court finds,
however, that considerable delays occurred especially in the first
instance proceedings which were attributable to the court itself. In
particular, it notes that from 27 January 1999 until 10 December
2002, the court continuously re-fixed the case for hearing and/or
adjourned the case (see paragraphs 10-12 above). As a result, for a
period of approximately four years the case was not dealt with. In
addition, the Court observes that it took the District Court more
than one year and seven months to deliver its judgment (see
paragraphs 15 and 17 above). This appears to be an unreasonably long
period of time and no explanations have been given by the Government
in this respect.
- Finally,
the Court notes that although the appeal was lodged on 4 January
2005, according to the last information
received by the Court on 16 October 2006, it had not yet been fixed
for hearing (see paragraph 19 above).
- In
conclusion, having taken into account the circumstances of the case
and the overall duration of the proceedings, the Court finds, that in
the instant case the length of the proceedings before the domestic
courts was excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
Admissibility
- The
applicants complained that the proceedings had not been fair contrary
to Article 6 § 1 of the Convention. In this respect, they
firstly complained that the Supreme Court, by delivering its decision
in the ex parte application for stay of execution, had
denied the opportunity to both parties, especially the plaintiff, to
be heard on the application by summons for the stay of execution of
the first instance judgment. They considered that the Supreme Court
had had a duty to preserve the status quo until it had heard
both parties. Secondly, the applicants claimed that the District
Court judge had awarded an amount which exceeded his jurisdiction
under law.
- As
regards the first complaint, the Court notes that the proceedings for
stay of execution, being an interim relief procedure in which no
decision on the merits of the case is made, do not involve the
determination of a civil right or obligation within the meaning of
Article 6 § 1 of the Convention (see, inter alia, APIS
a.s. v. Slovakia (dec.), no. 39754/98, 10 January 2000, unrepa
orted and Moura Carreira and Lourenço Carreira v. Portugal
(dec.), no. 41237/98, ECHR 2000-VIII, both with further references).
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention, within the meaning of Article
35 § 3 of the Convention, and must be rejected pursuant to
Article 35 § 4.
- With
regard to the applicants' second complaint, the Court observes that
the applicants have raised the issue of the trial judge's
jurisdiction before the Supreme Court on appeal (see paragraph 18
above). However, in view of the fact that these proceedings are still
pending (see paragraph 19 above), this complaint is premature.
- It
follows that the above complaint is also inadmissible under
Article 35 § 3 of the Convention as being manifestly
ill-founded, pursuant to Article 35 § 4.
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.”
A. Damage
- The
applicants claimed CYP 7,500 in respect of pecuniary damage. They
stated that this amount represented half the amount they had had to
pay to the plaintiff by way of interest. In this connection, they
argued that due to the unreasonable delay in the proceedings the
plaintiff's original claim had doubled because of interest.
- The
applicants further claimed CYP 15,000 by way of non-pecuniary damage.
- The
Government contested these claims.
- The
Court notes that the applicants have not substantiated their claim in
respect of pecuniary damage. Furthermore, it observes that it is
still possible that the national courts, before which the action
remains pending, may make reparation for the financial consequences,
if any, of failing to try the case within a reasonable time (see
Zanghì v. Italy, judgment of 19 February 1991,
Series A no. 194 C, p. 48, § 25). That being so, and
in the circumstances of the case, it would appear appropriate, to
dismiss the applicants' claim under this head. On the other hand, the
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award them EUR 7,000
each under that head, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicants claimed CYP 8,000 for the costs and expenses incurred
before the domestic courts and before the Court. In respect of the
former claim, the applicants requested the amount of CYP 4,304 that
they were ordered to pay to the plaintiffs as costs by the district
court. They provided the court's order for costs in support of their
claim. The applicants did not provide any supporting documents
concerning their claim for expenses incurred in the proceedings
before the Court.
- The
Government contested the applicants' claims concerning the
proceedings before the domestic courts. As regards the applicants'
claims for the costs before the Court, the Government noted that this
claim had not been specified and that such costs were not recoverable
without proof that they had been incurred.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI). In the present case, regard being had to the
information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
Even though the applicants have not submitted any documentary
evidence of the expenses incurred in the proceedings before the
Court, the Court acknowledges that they must have incurred certain
expenses in those proceedings, particularly since they were
represented by a lawyer (see Migoń v. Poland,
no. 24244/94, § 95, 25 June 2002, and H.L. v. the United
Kingdom, cited above, § 152). Accordingly, having regard to
its case-law, and making its own assessment of the reasonableness of
her costs and expenses, the Court awards the applicants EUR 800
jointly for the proceedings before the Court, plus any tax that may
be payable on that amount.
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 with regard to the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 7,000
(seven thousand euros) in respect of non-pecuniary damage, and to the
applicants jointly, EUR 800 (eight hundred euros) for costs and
expenses, to be converted into Cyprus pounds at
the rate applicable at the date of settlement, plus any tax that may
be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
