ORAMS v. CYPRUS
Inadmissible
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
The applicants, Mr David Charles Orams and Mrs Linda Elizabeth Orams, are British nationals who were born in 1944 and 1946 respectively and live in East Sussex. They were represented before the Court by Mr Z. Necatigil and Ms Ş. Karabacak, lawyers practising in Nicosia, in the northern part of Cyprus. and as derived from the documents submitted by the parties, may be summarised as follows. The applicants, a British couple, purchased a plot of land in 2002 in the “Turkish Republic of Northern Cyprus” (“TRNC”) from a private vendor who was the registered owner under the law of the “TRNC”. The land is situated in the village of Lapithos, in the district of Kyrenia. The applicants built a villa there and regularly use the property as their holiday home. Mr M.A. (“the plaintiff”), a Greek-Cypriot, claimed ownership of the above land and brought proceedings against the applicants before the District Court of Nicosia (“the District Court”) seeking damages for trespass to his property. He also applied for a demolition order of the villa, swimming pool and fence and for the return of the property. On 26 October 2004 two writs were issued in Greek by the District Court and served on the second applicant in person at the applicants' holiday home. She did not sign them. The writs stated that in order to prevent a default judgment an appearance had to be entered before the District Court within 10 days of service, namely by 8 November 2004. The applicants obtained the assistance of a lawyer, Mr G. M., who agreed to enter an appearance on their behalf on 8 November 2004. However, the lawyer did not enter an appearance on that day. No explanation for this has been given. On 8 November 2004 the plaintiff filed an application for judgment to be entered in default of appearance. On 9 November 2004, as no one had entered an appearance for the applicants, the District Court gave a default judgment on the plaintiff's claim. The applicants' lawyer attended the District Court on the above date in order to enter an appearance on behalf of the applicants but judgment had already been entered. The order of the District Court required immediate demolition of the villa and other constructions which the applicants had erected on the land and delivery to the plaintiff of free possession of the land. It further required the applicants to refrain from continuing the unlawful intervention on the land. Orders for damages (special and mesne profits) and costs were also made. On 15 November 2004 the applicants' lawyers, Mr G.M. and Mr M.A., entered an appearance on behalf of the applicants and filed an application to have the judgment set aside. On 19 April 2005, after hearing evidence and arguments from the parties, the District Court delivered a judgment dismissing the application. In its judgment the District Court held, firstly, that it had jurisdiction to try the case as the land in question was situated in the district of Kyrenia which came under its jurisdiction following the merger of that district with the district of Nicosia in 1974 (relying on/ referring to sections 3 (4) and 21 (2) of the Courts of Justice Law 1960 - Law 14/1960, as amended; and Notification No. 1383 in the Official Gazette of the Republic of 13 September 1974). The District Court relied on the Court's judgment in the case of Loizidou v. Turkey ((merits), 18 December 1996, Reports of Judgments and Decisions 1996VI) as authority that ownership of land in the northern part of Cyprus remained with its original Greek-Cypriot owners. It noted that the argument that the court should take into account the de facto situation in the north had been put forward and dismissed by the Court in its judgment in the case of Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey (no. 16163/90, 31 July 2003). The District Court then considered the merits of the application. Relying, inter alia, on the Court's judgments in the cases of Loizidou v. Turkey (cited above) and Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001IV), it held that the plaintiff had not lost his right to his land. It further found that the conduct of the applicants towards the property amounted to trespass and neither “local custom” nor the claim that the applicants had acted in good faith could provide a defence. It noted that Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Regulation No. 44/2001”) was not applicable in the case as it concerned exclusively the question of the recognition and enforcement of judgments in other jurisdictions and was irrelevant to the question of setting aside the judgment obtained by the plaintiff. The District Court concluded that the applicants had failed to show that they had a prima facie or arguable defence and dismissed the application on that ground. Costs were awarded to the plaintiff. It appears that due to difficulties faced in serving the applicants' lawyers, whose offices were in the northern part of Cyprus, with documents and/or notices of hearings, on 14 March 2006, one of the applicants' lawyers, Mr M.A., informed the Supreme Court that he would appoint an office of a colleague in Nicosia as an office for service and would notify the Registrar of this. According to the applicants, on 15 November 2006, a bailiff of the Supreme Court telephoned the office of one of the applicants' lawyers and asked them to contact the court to pick up the date for the appeal before the Supreme Court. According to the applicants a message was left with the secretary. The applicants submit that no written notification was sent to their lawyers and that, on 13 December 2006, one of their lawyers, Mr M.A., happened to be at the Supreme Court representing other clients and was called in by a Supreme Court judge to appear for the applicants at the hearing. The applicants state that this was the first time that Mr M. A. had heard of the date of the appeal. The appeal was heard on the above date. The verbatim record of the hearing reports the following submissions by the applicant's lawyer (translation): “Mr M.A.: please there is no need for translation as I understand and speak the Greek language. It would therefore be a waste of time. Your honour Mr President, your honours, at this stage I do not wish to waste the Court's time and I will simply adopt the outline of my address. The only thing I wish to add is that the Court, the District Court, had this case at an unfortunate time when there was no arrangement as to whether the retainers would be in the Greek, English or Turkish (language). As you will see in the file before us, we asked for the same facility in this Court too. In the end we agreed that it would be in the Greek language. It was a time immediately after the opening of the roadblocks when cases of such a nature came before the Courts in Nicosia and the Registrar had his doubts. I remember asking whether the retainer would be in English and they told us that the authorities of the Republic use only the Greek and Turkish language. I brought a retainer before 1974 in English, those we had in our Court and consequently there was a period of confusion. And I am sure that this confusion led to the decision that the Court gave in these circumstances in the wrong exercise of its discretion. All this case is based on the case of Wella and I argue and submit that her honour the judge in the lower Court approached it wrongly. Thank you.” Following the submissions of the plaintiff's lawyer, the Supreme Court reserved judgment. Subsequently, on 19 December 2006 the applicants' lawyers sought to file an amended notice of appeal before the Supreme Court. In particular, in a letter dated 18 December 2006, the applicants requested the Supreme Court to hold a two to three day hearing so that all relevant principles of European Community law could be examined; reminded the Supreme Court that it had a duty, under Article 10 of the Treaty establishing the European Community to consider all relevant principles of European Community law; and, lastly, relying on Article 6 § 1 of the Convention expressed the view that the hearing of 13 December 2006 had not afforded sufficient time for the examination of the complicated questions of European Community law that arose in the case. To their letter the applicants attached a detailed memorial and a copy of the judgment of the High Court of the United Kingdom. The applicants stated that they had not been permitted to file the aforementioned documents. On 20 December, however, the clerk at the Registry informed them that although the documents would not be formally accepted they would be shown to the judges. In the meantime the court had fixed the case for judgment for 21 December 2006. On that date, immediately before judgment was delivered, the verbatim record reports the following exchange as having taken place (translation): “Court: Today we fixed the case for judgment. Mr M.A., you are submitting an application, which has not been of course translated but you have made a letter in English. If I understand correctly you wish to file amended grounds of appeal and reopen the case? The case has finished and has been reserved. Will you file an application for amended grounds of appeal at this stage? Mr M.A.: We will withdraw this application. Court: There are decisions that at this stage after judgment has been reserved the case is not reopened unless the Court itself requires any clarification. We will ignore this application and proceed to deliver judgment. The judgment is unanimous. The judgment will be given by Judge Nikolatos. Mr M.A.: We do not need a translator. We waive the right for translation in Turkish.” The Supreme Court then delivered its judgment dismissing the appeal. With regard to the issue of jurisdiction the court noted the following: “At the beginning of the address of learned counsel for the appellants, argumentation was put forward which aimed to show that the first instance court did not have jurisdiction or territorial competence to try the case before it. The issue of the jurisdiction of the first instance court was raised before us also by learned counsel for the respondent, who indeed invited this court to refer the issue of jurisdiction to the Court of the European Communities as a preliminary legal point. Following the observation made by our Court that the issue of jurisdiction is not raised in the present appeal as it does not constitute any of the grounds of appeal, learned counsel for the respondent abandoned in essence his original suggestion. We do not intend to examine the question of jurisdiction or territorial competence of the first instance court as this matter is not raised in the appeal and is not a ground of appeal. It is correct that the matter of jurisdiction can be raised at any stage of the proceedings and can be raised ex proprio motu by the Court, but in the present case it is not raised in the grounds of appeal and our Court does not consider it useful to raise it on its own initiative.” In the meantime, on 18 October 2005, the plaintiff applied under Regulation No. 44/2001 for recognition and enforcement in the United Kingdom of the judgments of the Nicosia District Court; namely, (i) the default judgment of 9 November 2004 and (ii) the judgment of 19 April 2005. On 21 October 2005 Master Eyre ordered that the above judgments be registered in and be declared enforceable pursuant to the above Regulation. The applicants brought a successful challenge against that order before the High Court under Article 43 of Regulation No. 44/2001. By order dated 6 September 2006 Mr Justice Jack allowed the appeal and set aside the registration of the two judgments. The applicants were successful on two grounds. The first was that Mr Justice Jack considered that the effect of Protocol No. 10 to the Act of Accession, was that the acquis, and therefore Regulation No. 44/2001, were of no effect in relation to matters which related to the northern part of Cyprus. Hence, the plaintiff could not rely on the acquis in order to secure the recognition of the judgments he had obtained. In this respect, he noted, however, that the land was within the territory of the Republic of Cyprus and that the case law of the Court showed that the “TRNC” laws could not be relied on by the applicants to deprive the plaintiff of his title to the land. The second ground arose from the circumstances in which service of the original proceedings was effected and the time that was permitted for entry of an appearance to the proceedings. He granted permission to appeal to the Court of Appeal. The plaintiff lodged an appeal under Article 44 of Regulation No. 44/2001 to the Court of Appeal (Civil Division) (England and Wales). By order dated 26 June 2007 the Court of Appeal referred to the European Court of Justice (“ECJ”) for a ruling on the issues raised, five questions being specified in the schedule to the order. The questions, in sum, concerned, firstly, the application of Regulation No. 44/2001 to a judgment relating to claims to the ownership of land situated in the northern area of Cyprus, in view of suspension of the application of the acquis communautaire in that area pursuant to Article 1 (1) of Protocol No. 10; and, secondly, the interpretation of Articles 35 (1) and 34 (1) and (2) of Regulation No. 44/2001 with regard to the possible grounds for non-recognition and non-enforcement within the meaning of these provisions. Following an oral hearing before the ECJ, Advocate General Kokott delivered an opinion on 18 December 2008. In her view Article 1 (1) of Protocol No. 10 and Articles 34 (1) and (2) and 35 (1) of Regulation No. 44/2001 did not constitute grounds for refusal of recognition or enforcement of the default judgment. With regard to Article 34 (2) Advocate General Kokott concluded as follows: “123. Article 34(2) of Regulation No. 44/2001 is to be interpreted as meaning that recognition and enforcement of a default judgment may not be refused by reference to irregularities in the service of the document which instituted the proceedings, if it was possible for the defendant, who initially failed to enter an appearance, to commence proceedings to challenge the default judgment, if the courts of the State where the judgment was given then reviewed the judgment in full and fair proceedings, and if there are no indications that the defendant's right to a fair hearing was infringed in those proceedings.” On 28 April 2009, the Court (Grand Chamber) gave judgment. It ruled as follows: “1. The suspension of the application of the acquis communautaire in those areas of the Republic of Cyprus in which the Government of that Member State does not exercise effective control, provided for by Article 1(1) of Protocol No. 10 on Cyprus to the Act concerning the conditions of accession [to the European Union] of ... the Republic of Cyprus ... and the adjustments to the Treaties on which the European Union is founded, does not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerns land situated in areas not so controlled. 2. Article 35(1) of Regulation No. 44/2001 does not authorise the court of a Member State to refuse recognition or enforcement of a judgment given by the courts of another Member State concerning land situated in an area of the latter State over which its Government does not exercise effective control. 3. The fact that a judgment given by the courts of a Member State concerning land situated in an area of that State over which its Government does not exercise effective control, cannot, as a practical matter, be enforced where the land is situated does not constitute a ground for refusal of recognition or enforcement under Article 34(1) of Regulation No. 44/2001 and it does not mean that such a judgment is unenforceable for the purposes of Article 38(1) of that regulation.” Further, the ECJ found, unlike the High Court, that Article 34 (2) of Regulation No. 44/2001, could not legitimately be relied upon to refuse recognition or enforcement of a default judgment as the applicants had been able and did commence proceedings to challenge the default judgment of the District Court. In particular, the ECJ stated as follows: 4. The recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No. 44/2001 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence.” The Court of Appeal then gave judgment on 19 January 2010 in favour of the plaintiff. It first noted that the answers of the ECJ to the questions put were such that, subject to the further issues raised before it, the appeal should be allowed and the orders of Master Eyre registering and declaring enforceable the Cypriot judgments reinstated. It then went on to examine the two issues raised by the applicants for determination. These concerned the denial of enforcement on the basis of public policy and the possibility that the ruling of the ECJ was affected by the apparent bias of the President of that court and whether further questions on these matters should be referred to the ECJ. The Court of Appeal found firstly, that there was no public policy applicable in the United Kingdom to which the recognition and enforcement of the judgments of the Cypriot court would be manifestly contrary and secondly, that there was no appearance of bias on the part of the President of the ECJ. It therefore considered that no reference on the above issues should be made to the ECJ. From a letter dated 9 February 2010 sent to the Court by the applicants' lawyers it appears that the applicants have filed an appeal before the Supreme Court of the United Kingdom and that their application for stay of execution of the District Court's judgments was refused. “4. The appellant may, by his notice, appeal from the whole or any part of any judgment or order, and the notice shall state whether the whole or part only of the judgment or order is complained of, and in the latter case shall specify such part. The notice shall also state all the grounds of appeal and set forth fully the reasons relied upon for the grounds stated. Each ground of appeal shall be set out in a separate paragraph. After each ground of appeal the reasoning thereof shall be set out separately Any notice of appeal may be amended at any time as the Court of Appeal may think fit.” “8. The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the Trial Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court notwithstanding that the notice of appeal may be that a part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.” “15. (2) Where the appeal is only from part of a judgment or order, the hearing shall be confined to that part. Further, the hearing shall be confined to the grounds stated and the reasons set forth in the notice of appeal. But these provisions shall be subject to the discretion of the Court of Appeal”. Pursuant to Article 21(2) of Law 14/60 (as amended) where an action concerns any matter relating to real property that action shall be brought before the District Court of the district in which such property is situated. By order of the Supreme Court published on 13 September 1974 in the Official Gazette of the Republic of Cyprus with Notification No. 1383 following the invasion of Cyprus, the territories of the districts of Kyrenia and Nicosia were reorganised. The power for merging of districts is granted to the Supreme Court by Section 3 (4) of Law 14/60 (as amended by Law 136/91). Under domestic law if the defendant does not enter an appearance in the 10 days following service of writ of summons instituting proceedings the plaintiff may apply for a default judgment. Entering an appearance is an act which does not require the defendant to set out the nature of any defence. Under Order 17 r. 10 of the Civil Procedure Rules: “Where judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court in a proper case to set aside or vary such judgment upon such terms may be just”. In proceedings to set aside a default judgment the claimant is required to establish the existence of a prima facie arguable defence concerning the merits of the case. The claimant is not required to prove his defence. Further, the claimant will be required to put forward an explanation concerning his/her failure to enter an appearance (see, for example, the Supreme Court's judgment of 25 October 2006 in the case of Elenitsa Constantinides v. Nur Habib Hissin, (2004) 1 C.L.R.1774; the Supreme Court's judgment of 18 September 2001 in the case of Bush and others v. Yiannis (2001) 1 C.L.R. 1432, relying on the case of Evans v. Bartlan (1937) 2 All ER 646). 1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1. Regulation No. 44/2001 lays down rules governing the jurisdiction of courts in civil and commercial matters. The relevant provisions of the Regulation provide as follows: “(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute. (17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. (18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.” “The following courts shall have exclusive jurisdiction, regardless of domicile: “1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. ... .” “A judgment shall not be recognised: 1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; 2. Where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;....” “1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72. 2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction. 3. Subject to ... paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.” “1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. ....” “1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay. 2. Under no circumstances may the foreign judgment be reviewed as to its substance.” Article 43 of the Regulations provides for an appeal against the decision on the application for a declaration of enforceability. Article 44 provides for a further appeal.