CASE OF CHRISTODOULOU v. CYPRUS
Violation of Article 6 - Right to a fair trial
Christos Rozakis;Costas Pamballis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Pamballis;Sverre Erik Jebens
5. The applicants were born in 1964 and 1936 respectively and live in Paphos. 6. The applicants rented a souvenir shop together in Paphos. On 2 March 2001 they filed an application (K2/01) before the Rent Control Tribunal (”the RCT”) challenging the amount of rent they paid the respondents and seeking its reduction. 7. On 22 March 2001 the RCT ordered that the application be served abroad on the respondents in Athens. 8. On 11 April 2001 the respondents filed their defence. 9. Upon completion of the pleadings, the applicants, on 27 April 2001, requested the RCT to list the application for mention. 10. The application was listed for directions six times between 21 June 2001 and 20 December 2001. No court records are available for this period. 11. On 25 February 2002 the respondents filed an application for discovery and inspection of documents. 12. On 28 February 2002 the respondents requested that the RCT carry out a local survey. With the applicants’ agreement, this was carried out on the same day. 13. The case was listed for a directions hearing to be held on 7 March 2002 with a view to setting a hearing date after the parties’ lawyers had the opportunity to inform the court of their decision regarding the manner in which the court’s expert would testify. 14. On the above date the respondents requested leave to amend their valuation. 15. The application was set down to be heard on 25 April 2002 and the court directed that its expert would testify and be cross-examined on that day. 16. The hearing started on the above date. Following the expert’s testimony, the respondents requested that cross-examination take place on another date to allow their expert to assess the evidence given and prepare their cross-examination. The applicants’ lawyer objected. 17. The court granted the adjournment and set the case down for 23 May 2002 after discussing the suitability of that date for the lawyers. Costs were ordered against the respondents. 18. The hearing continued on the above date with the cross-examination of the RCT’s expert by the respondents’ lawyer. When this finished the hearing was adjourned to 13 June 2002 at the applicants’ request. 19. The hearing continued on 13 June 2002 with the cross-examination of the RCT’s expert by the applicants’ lawyer. At the end of the hearing the respondents requested the court to join the application with another three applications (K10/00, K12/00 and K13/00) as they all concerned the determination of the rental value of shops which were situated in the same complex. The parties agreed and the court issued an order joining the applications. As the lawyers considered there was not enough time for the testimony and cross-examination of the respondents’ expert the hearing was fixed for 19 September 2002, following the summer vacation. 20. On the above date the court accepted the parties’ request that the evidence of the expert be given at the same time for all the cases followed by separate cross-examination by each lawyer. After the examination-in-chief of the first witness, the examination-in-chief of the second witness was interrupted due to that witness’s ill health. 21. The hearing continued on 24 October 2002 and was then adjourned to 12 December 2002. It was further adjourned, however, on that date, as the respondents’ expert could not attend due to a health problem. 22. The hearing was then listed for 20 February 2003. It continued on that date and then on 22 April 2003. The hearing was initially due to continue the next day but was instead adjourned to 19 and 24 June 2003 in order to allow the lawyer in one of the applications to prepare his client’s defence. 23. On 12 June 2003, however, the court cancelled the first session as one of the trial judges would be abroad. It further issued an order separating the applications (see paragraph 18 above) and stated that separate decisions would be delivered. 24. On 24 June 2003 the parties’ lawyers addressed the court. 25. On 27 November 2003 the court rejected the evidence given by the respondents’ expert and, on the basis of the evidence of the expert it had appointed, ordered a reduction in the rent paid by the applicants. Costs were awarded in favour of the applicants. 26. On 7 January 2004 the respondents lodged an appeal before the Supreme Court. 27. By letter dated 9 January 2004 the Registrar of the RCT of Paphos informed the Chief Registrar of the Supreme Court that the records of the proceedings would be transcribed and sent to the Supreme Court by 31 March 2004. 28. By a letter dated 9 March 2004 the Supreme Court informed the appellants that their appeal had been entered in the register (appeal no. 11939). 29. By letter 12 May 2004 the Registrar of the RCT of Paphos sent the case file, the court records, the judgment and the list of exhibits to the Supreme Court. 30. The appeal was listed for a preliminary hearing on 22 October 2004. On that date directions were given for the submission of written outlines of submissions to be made at the appeal hearing. 31. These were filed on 6 December 2004. 32. On 14 January 2005 the applicants informed the court that they had appointed a new lawyer. 33. On 15 April 2005 the appeal was submitted to the Supreme Court but in the absence of an available date it was not set down for hearing. 34. On 23 August 2005 the Chief Registrar of the Supreme Court informed the parties that the appeal had been set down for hearing on 22 November 2005. Following an exchange on the matters raised between the court and the parties the hearing was adjourned at the parties’ request until 20 December 2005. 35. On the latter date the parties addressed the court and judgment was reserved. The applicants’ lawyer stated that he was in complete agreement with the first-instance judgment. 36. On 27 January 2006 the Supreme Court upheld the appeal and set aside the RCT’s decision. It ordered a retrial of the case. The Supreme Court found that the RCT had erred in its assessment of the evidence that had been put before it. In this connection, it noted that the RCT had failed to take into account the average rental rate of the shops in the area and relevant factors such as the age, condition and facilities of those shops when assessing the rental value of the shop in question. Secondly, it found substantial errors in the valuation made by the RCT’s expert which included the failure to make the necessary adjustments when comparing different properties and to determine the advantages and disadvantages of the properties compared. The court considered that the valuation given by the RCT’s expert had been ill-founded and unreliable and that therefore the RCT should not have relied on it. Similarly, the court found that the valuation of the respondents’ expert (the appellants at the appeal stage) had been unsound. In this connection, it noted that this valuation had defined the area in question very narrowly and as a result had not taken into account other nearby shops which should have been considered for comparison purposes. The Supreme Court therefore concluded that overall no evidence had been put forward which would enable the determination of a fair rent in respect of the applicants’ shop. 37. Finally, the Supreme Court ordered that the costs of both the first instance and appeal proceedings be paid by the applicants (the respondents at the appeal stage). 38. Following a request by the Registrar of the RCT of Limassol- Paphos, the Supreme Court, in a letter dated 16 March 2006, gave directions for the retrial of the application. 39. On 6 April 2006 the application was brought before a newly composed RCT and was listed for a directions hearing on 16 May 2006 in view of the possibility of a friendly settlement. 40. On the latter date the application was fixed for hearing on 21 September 2006. On that date the respondents requested that they be given time to consider the court’s proposals with regard to a settlement. With the applicants’ agreement the application was set down for hearing on 19 October 2006. On the latter date the parties informed the court that they accepted its proposals concerning determination of the rent. The applicants’ lawyer claimed his costs [for the retrial] and the respondents’ lawyer claimed the costs of the first trial and appeal. 41. On that date the court determined the rent as agreed and ordered that the respondents pay the retrial costs, as assessed by the Registrar and approved by the court, unless the parties reached a different agreement. 42. During the retrial proceedings, by letter dated 24 May 2006, the applicants’ lawyer requested the Attorney-General to consider whether it would be possible for the State to pay the costs of the proceedings in view of the fact that the errors for which the case was sent back for retrial had not been committed by the applicants. 43. By letter dated 31 May 2006 the Attorney-General replied that this was not possible since the proceedings in question concerned a trial between private parties and, further, that it was for the courts to take into account all relevant circumstances when determining the matter of costs. 44. Section 43 of the Courts of Justice Law 1960 (Law no. 14/1960, as amended) provides as follows: “The costs of, and incident to, any civil proceedings, in any court, shall, unless otherwise provided by any law in force for the time being, or any subsidiary legislation, be in the discretion of the court and the court shall have full power to determine by whom and to what extent such costs shall be paid”. 45. Order 59 of the Civil Procedure Rules sets out the rules concerning costs. Rule 1 of this Order provides as follows: “Subject to the provisions of any law or Rules, the costs of, and incident, to any proceeding shall be in the discretion of the Court or Judge, who may authorise an executor, administrator or trustee who has not unreasonably instituted, or carried on, or resisted any proceeding, to have his costs paid out of a particular estate or fund.” 46. Regulation 13 (a) of the Rent Control Rules of 1983 provides: “The award of costs is a matter in the discretionary power of the court. The outcome of the case is not the sole factor for the award of costs but all the circumstances of the case must be taken into account.” 47. Section 5 of the Rent Control Law 23/1983 (as amended) provides that the procedure before the Rent Control Tribunal is a summary procedure not bound by the rules of evidence.