MENELAOU v. CYPRUS
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
The applicant, Mr Costas Menelaou, is a Cypriot national who lives in Limassol, Cyprus. He had been granted legal aid covering part of his costs for the proceedings before this Court and was represented by Professor M. Shaw QC, a barrister practising in London. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was arrested on 20 April 1999 and was remanded in custody until 12 May 1999. On 15 February 2000 he was committed for trial before the Assize Court of Limassol sitting on 30 March 2000. On the latter date, he was formally charged with a series of offences dating from 15 July 1997 to 4 January 1999. He pleaded not guilty. A lengthy series of adjournments of the proceedings followed. On 26 June 2000 the court adjourned the case to 3 October 2000, and then to 27 November 2000 as another case which was pending before it had been assigned priority. On the same ground the hearing was adjourned twice more. On 28 May 2001, the applicant’s request for an adjournment was granted and the case fixed for 5 November 2001. On that date, the case was further adjourned on the basis of a request submitted by the prosecution and was fixed for hearing on 28 January 2002. On the latter date, the applicant requested an adjournment. This was granted by the court which noted that it was, in any event, unable to proceed because it was engaged in the trial of another case. It fixed the case for 29 April 2002 when it adjourned it to 23 September 2002 due to lack of time as it had three ongoing trials. On that date, the hearing was again adjourned to 17 March 2003 and it was further adjourned at the applicant’s request because in fact the court had two other hearings. On 12 September 2003, the applicant requested a further adjournment due to the deterioration of his health following a road accident. The case was accordingly adjourned to 14 October 2003. On that date the applicant applied for a stay of the proceedings on the ground that the excessive delay violated Article 30 of the Constitution guaranteeing the right to a fair trial within a reasonable time and Article 6 of the Convention. The Assize Court granted the application. Reference was made to a period of three and a half years when “there was complete inactivity in the case” and for which “the excessive workload of the Assize Court” was responsible. It observed that the trial had been adjourned ten times without the applicant being responsible, and that even on the three occasions when he had himself requested an adjournment, this was granted because of the court’s inability to pursue the case. It therefore concluded that three and a half years’ delay, from the filing of the case until 12 September 2003, constituted a breach of the reasonable time requirement. It noted that while the European Court of Human Rights had never found that a violation of Article 6 of the Convention required the quashing of a conviction, this was one of the remedies offered by the common law in appropriate circumstances. For instance, where the delay took place after the lodging of an appeal against conviction, the appropriate remedy would be a reduction of a sentence, whereas if the delay had arisen before the trial began, as in the present case, one of the available remedies would be to uphold an accused’s plea in bar of the trial. Reference was made to the House of Lords’ judgment in Attorney General’s Reference no.2 of 2001 (J) (2001) EWCA Crim. 1568 where it had been stated with regard to stay of proceedings that although it was a remedy which the court could grant, it should be confined to situations which in general terms amounted to an abuse of process. It was noted, however, that Cyprus case-law on this point was clear: where the shortcomings in the fairness of the proceedings could be remedied by a retrial, a retrial should be ordered where possible; but if the constitutional rights of an accused had been infringed by a failure to put him on trial within a reasonable time, he should not be obliged to prepare for a trial which would necessarily take place after an unreasonable length of time. In the view of the Assize Court, the only appropriate remedy for the unreasonable length of the proceedings under examination was to stay the proceedings and order the applicant’s discharge. The Supreme Court in its judgment of 14 April 2004 criticised the Assize Court’s assessment of the delay since it had only relied on the length of the period and had not considered other relevant factors, such as the complexity of the case and the applicant’s own conduct. Moreover, it found that the Assize Court’s account of the relevant adjournments had been inaccurate: while the court itself had been responsible for a number of them, the applicant had not objected and he had himself requested the adjournment of the case on a number of occasions. It observed that according to its case-law unreasonable delay could be remedied by taking it into account in the reduction of sentence. For all the above reasons it considered the decision of the Assize Court erroneous and held that it should be set aside and the case sent for retrial by the Assize Court. On 20 May 2005 judgement was delivered by the Assize Court which found the applicant guilty of the offences of falsification of accounts and stealing by an employee. The applicant was acquitted of ten other charges of steeling by an employee and more serious charges of falsification of documents. On 24 May 2005 the same court proceeded to sentence the applicant. It considered that given the seriousness of the offences of which he had been convicted, involving breach of confidence and elements of fraud, the only appropriate sentence would be that of imprisonment. The maximum sentence provided for by the relevant provisions of the Criminal Code at the time of commission of the relevant offences was seven years’ imprisonment. The Assize Court referred to the previous decision of the Supreme Court in the case, noting that a finding that a trial had not been concluded within reasonable time could be remedied by taking the delay into account as a mitigating factor. It stated that: “It is a fact that the lapse of six years from the date of the applicant’s arrest and more than seven years (almost eight) from the commission of the offences for which he has been found guilty, constitutes in itself a period of time that should be taken into account in the determination of an appropriate sentence. The uncertainty of the pending proceedings leading to understandable anxiety about one’s guilt or innocence is in itself harrowing, but this is aggravated by the circumstances of this case, which we will attempt to summarise in the context of our duty to impose a sentence: (a) the accused has been acquitted after a lengthy hearing of most of the charges brought against him; (b) Despite the fact that certain requests for an adjournment were made on behalf of the defence, responsibility for the length of the proceedings could not be attributed to them given the conduct of the proceedings as a whole... (c) During this period of time... the accused’s [personal] circumstances had deteriorated. In addition to the anguish he went through due to the pending proceedings, he had lost his employment in the bank and was unable to find a new job.... Moreover, [it was asserted on behalf of the accused that] because of the proceedings he could not get married. .... We have carefully examined the circumstances of the present case knowing that they lasted for such a long period that their duration must have a substantial impact on the sentence as a primary mitigating factor. Having examined the seriousness of the offences and balanced every other relevant factor, we find that the appropriate sentence cannot be other than that of imprisonment. The length of the proceedings in combination with the accused’s lack of criminal record, the devastating effects that the proceedings had on his life (and, in particular, his loss of employment and career prospects) must have a significant impact on the prison sentence that is to be passed.” Accordingly, the applicant was sentenced to eight months’ imprisonment on each of the two counts of falsification of accounts and ten months’ imprisonment on each of the counts of stealing in respect of which he had been convicted. All the sentences were to run concurrently. The applicant’s request for suspension of the sentence of imprisonment was rejected. Article 30 (2) of the Cyprus Constitution provides as follows, in so far as relevant: “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by an independent, impartial and competent court...”. In the case of Eustathiou v. the Police (1990) 2 S.C.J. 294 it was stated: “This case had been repeatedly adjourned without a valid reason and without the accused’s culpability. Hence, the accused’s criminal liability had not been determined within reasonable time in breach of his right guaranteed by Article 30 (2) of the Constitution. This finding leads to the quashing of the conviction as well as the proceedings in their entirety including the arrest order and confiscation of the applicant’s surety.” In the case of Christopoulos v. the Police (2001) 2 C.L.R. the Supreme Court stated that: “A violation of the rights guaranteed by Article 30 (2) of the Constitution ... renders the proceedings void in their entirety.” However, in the recent case of Theocharous v. The Republic, Criminal Appeals 185/2006 and 210/2006 of 21 January 2008, the Supreme Court observed that the case-law of the European Court of Human Rights concerning the consequences of a violation of the fair trial guarantee due to the excessive length of the proceedings was not as strict as the position adopted by the Cyprus Supreme Court in its judgment in Eustathiou v. the Police (cited above) and subsequent cases. It concluded that the consequences ought to be determined in accordance with the extent of the violation at issue and the possible prejudice to an accused’s defence. Where a violation is demonstrated it should be taken seriously into account as a mitigating factor in sentence.