CASE OF ARESTI CHARALAMBOUS v. CYPRUS
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicant was born in 1972 and lives in Nicosia. 5. The facts of the case, as submitted by the parties and as derived from the minutes of the proceedings, may be summarised as follows. 6. On 14 August 1997 the applicant married a Romanian citizen. On 28 September 1998 he filed a petition for divorce (no. 382/98) with the Family Court of Nicosia. 7. On 16 October 1998 the applicant filed an ex parte application for leave to publish the divorce petition in an English daily newspaper. Leave was granted by the court on 19 October 1998. 8. On 24 November 1998 the court fixed the case for mention for 21 December 1998 and instructed the counsel of the applicant's former wife (hereinafter “the respondent”) to file her defence by that date. This was filed on 2 March 1999. 9. On 15 December 1999 the respondent filed an application raising certain preliminary points of law to be tried before the main petition. The application was set for 21 December 1999 and then for 31 January 2000. In the meantime, on 27 January 2000, the applicant filed an objection to the application. 10. From 31 January 2000 until 23 October 2000 both the main divorce and interim proceedings were adjourned eight times. Two of these adjournments were by the court itself: from 15 May 2000 until 22 May 2000 and from 23 September 2000 until 23 October 2000. It appears that the remaining adjournments were by the parties' mutual agreement. 11. During the above period, on 21 July 2000, a deportation order was issued against the respondent by the immigration authorities. On 4 September 2000 the respondent filed an administrative recourse before the Supreme Court (first instance administrative jurisdiction) challenging the order, requesting an interim application for the suspension of the deportation order in order to be able to attend the divorce proceedings and testify before the Family Court and a declaration recognising her right to have her residence permit renewed. 12. On 23 October 2000 the respondent withdrew her application of 15 December 1999 and upon agreement by both parties the hearing of the divorce petition was adjourned until 19 December 2000. 13. The hearing of the petition commenced on 19 December 2000 and was completed on 13 March 2001. Three hearing sessions were held with one adjournment at the request of the respondent's lawyer. 14. In the meantime, on 5 March 2001, the Supreme Court delivered an interlocutory judgment and rejected the respondent's recourse. The Supreme Court noted that the respondent's residence permit had expired on 7 September 1998 and that since then she had been staying in Cyprus without a permit. Nonetheless, she had not been deported pending the proceedings in another recourse she had filed against the administrative authorities' decision not to grant her another permit. This recourse had been rejected by the Supreme Court on 5 July 2000 and this was the reason that the deportation order of 21 July 2000 had been issued. Furthermore, the Supreme Court observed that to grant the respondent her application for an interim order for the suspension of the deportation order would in essence result in the grant of permission to stay, which was outside the competence of the Court. The right of any person, whether Cypriot or alien, to be present at proceedings before a court, was not related to the question of permission to stay. The applicant, in her recourse, had linked the two, but the need for her to be present at the trial before the Family Court would be regulated by the requirements of the trial and not according to a general obligation of the Republic to grant her permission to stay in the Republic for the duration of the trial, as she asserted. 15. The respondent was deported on 7 March 2001. 16. On 13 March 2001 the Nicosia Family Court issued an ex-tempore decision granting the applicant's divorce petition. 17. On 23 April 2001, the applicant's former wife who had been deported (hereinafter “the appellant”), filed an appeal (no. 137/01) before the Supreme Court (Family Court Appeal Jurisdiction). The minutes of the first instance proceedings were received by the Supreme Court on 23 July 2001. 18. On 3 October 2001 the applicant filed an application for security of costs. The court fixed this application for hearing for 9 November 2001. On the latter date, the court fixed the application for further directions for 5 December 2001 and instructed the appellant to file her written objection by the above date. This was filed on 4 December 2001. 19. On 5 December 2001 the application was fixed for hearing for 11 January 2002. 20. In the meantime, on 23 December 2001, the appellant filed the outline of her address. 21. On 11 January 2002 the court heard the appellant's objection to the security of costs application and it reserved its decision on the matter. It also fixed the appeal proceedings for pre-trial for 8 November 2002. 22. In the meantime, on 27 June 2002, the court delivered its decision concerning the application for security of costs. 23. On 5 November 2002 the appellant filed her application for leave to amend her grounds of appeal. This was granted by the court on 8 November 2002. On the latter date, the parties were also directed to file their amended notices of appeal and the outlines of their addresses. 24. The appellant filed her amended grounds of appeal on 18 November 2002 and the applicant filed his written address outline on 6 February 2003. 25. On 27 May 2003 the Supreme Court fixed the appeal case for hearing for 29 May 2003. On the latter date the appellant's counsel made an oral request for the exclusion of one of the judges from the composition of the court. The specific judge had rejected her administrative recourse against the deportation order (see paragraph 14 above). Consequently, the hearing was adjourned until 8 July 2003 at the appellant's request. 26. On 7 July 2003 the appellant's counsel requested a fifteen-day adjournment because of health problems. On 9 July 2003 the Supreme Court granted the adjournment until 11 September 2003. 27. On 18 September 2003 the Supreme Court rejected the appellant's request of 29 May 2003. 28. The appeal was heard on 2 October 2003. 29. On 4 December 2003 the court delivered its judgment. It upheld the appeal and set aside the first instance judgment. It found that the appellant's right to a fair trial had been violated. This was due to the fact that the immigration authorities had not allowed her to remain in Cyprus for the purposes of the trial whilst the Nicosia Family Court had continued with the case despite having being informed of the respondent's deportation. The Supreme Court noted that the Family Court should have adjourned the case and indicated to the immigration authorities to allow the respondent to return for a few days to Cyprus in order to enable her to be present at the proceedings and to defend her case. The Supreme Court ordered a retrial by a different composition of the Family Court. 30. On 23 December 2003 the applicant's counsel applied for a retrial of the divorce petition. 31. On 27 January 2004 the hearing of the divorce petition was set for directions for 10 February 2004. 32. In the meantime, on 4 February 2004, the respondent filed an application for leave to amend her defence. 33. On 10 February 2004 the court fixed the interim application and the divorce petition for directions for 17 February 2004. 34. In the meantime, on 13 February 2004, the respondent filed a second application for leave to amend her defence. On 17 February 2004 she withdrew her application of 4 February 2004 and the court granted her application of 13 February 2004. Subsequently, the court fixed the main divorce proceedings for hearing for 16 March 2004. 35. The amended defence and counter-claim were filed on 1 March 2004. 36. From 16 March 2004 until 18 May 2004 the proceedings were adjourned twice consecutively. Both adjournments were at the request of the respondent's lawyer because his client could not appear before the court as the immigration authorities had not made the necessary arrangements for her to come to Cyprus. 37. A hearing was held on 18 May 2004 and the court granted the divorce petition on the same day.