PANAYI v. CYPRUS
Inadmissible
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Mr Panayiotis Panayi, is a Cypriot national who was born in 1954 and lives in Limassol. The applicant has brought the present application in his capacity as administrator of his deceased father's estate. On 16 March 1990 a civil action was brought before the District Court of Paphos by, inter alia, the applicant, in his capacity as administrator of his deceased father's estate, against four members of his family and the Attorney-General of the Republic concerning the transfer and registration of certain plots of land. On 10 March 1999 the action was settled by way of friendly settlement. On 28 January 2000 the applicant, in his capacity as administrator of his deceased father's estate, brought another civil action before the District Court of Paphos against four members of his family and the Attorney-General (“the defendants”) seeking the transfer and registration of a plot of land in his name. On 18 July 2006 the District Court upheld the applicant's claim in part. It issued an order for the annulment of the registration of the plot in the names of defendants nos. 1–4 and further, an order for the restoration/reinstatement/re-registration of the property in the applicant's grandfather's name. On 28 August 2006 the applicant lodged an appeal with the Supreme Court, claiming that the District Court should have ordered the transfer and registration of the plot in his name and also that he should have been awarded general, special and exemplary damages (appeal no. 353/06). The defendants also appealed against the first-instance judgment (appeal no. 261/2006). On 11 February 2009 the Supreme Court dismissed the applicant's appeal but upheld the respondents' appeal. It set aside the District Court's judgment and annulled the orders that had been issued. Article 30 § 2 of the Constitution safeguards the right to a fair trial. It provides as follows, in so far as relevant: “In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ...”. In order to ensure the effective protection/application at domestic level of the principle of the right to a trial within a “reasonable time” and to provide effective domestic remedies in relation to breaches of that right, Parliament passed the Law Providing For Effective Remedies for Exceeding the Reasonable Time Requirement for the Determination of Civil Rights and Obligations, Law 2(I)/2010. This Law entered into force on 5 February 2010 and applies to complaints concerning the length of proceedings in all civil and administrative cases. The relevant parts of Law 2(I)/2010 provide as follows: “Whereas Article 6.1 of the European Convention on Human Rights and Article 30.2 of the Constitution of the Republic of Cyprus safeguard the right to determination of civil rights and obligations within a reasonable time, And whereas in a number of individual recourses against Cyprus the European Court of Human Rights found violations of Article 6.1 of the Convention in that the civil rights and obligations of the applicants in civil cases and recourses had not been determined by the Cyprus Courts within a reasonable time as required by the above-mentioned Article and also found a violation of Article 13 in that there were no effective remedies in the Republic as required by Article 13 regarding the applicants' allegations of violation of the requirement of Article 6.1, And whereas the Republic's obligation under Article 46 of the Convention to abide by the said Judgments of the European Court of Human Rights is being supervised by the Committee of Ministers of the Council of Europe and entails the adoption of measures preventing future violations as those found by the Court in the above-mentioned individual applications, And whereas a number of individual recourses against the Republic are pending before the European Court of Human Rights for violation of Articles 6.1 and 13 of the Convention regarding determination of the applicants' civil rights and obligations in civil cases and recourses, And whereas the Republic is bound by Article 1 of the Convention to secure the rights of the Convention including the right to effective domestic remedies for violation of the right to determination of civil rights and obligations within a reasonable time.” “(1) This Law applies with regard to the violation of the right of persons to determination of their civil rights or obligations within a reasonable time in District Court or Supreme Court cases, whether they are pending at any stage at first instance or on appeal or have been concluded. (2) A person who alleges that in a case to which this law applies his right to determination of his civil rights or obligations within a reasonable time has been violated has a right to have recourse to the legal proceedings provided for in the present Law for obtaining the remedies provided by it. (3) Violation, in a court case to which this Law applies, of the right of a person to determination of his civil rights or obligations within a reasonable time and the granting of the remedies provided for in this Law for the violation, is determined by courts vested with competence under this Law.” “The right to determination of civil rights and obligations within a reasonable time in a case to which this Law applies is actionable, and the person who alleges that he or she is a victim of a violation of the right may have recourse to the court with jurisdiction by way of action against the Republic by virtue of this Law, claiming the remedies for the violation provided for in this Law.” “(1) An action under section 4 may be instituted for violation of the right in a case which has been concluded with a final court judgment concerning violation of the right at any stage of the case, i (2) An action under section 4 may also be instituted for violation of the right in a case concluded with a judicial decision before the date of entry into force of the present Law, or in which execution of a judgment given before the date of entry into force is pending, provided that the action is instituted within one year of the date of entry into force or the date of the ed within the above time-limit.” “(1) Irrespective of the provisions of any other law, the court which is granted jurisdiction by this Law to examine and determine an action under sections 4 and 5 for a violation of the right to determination of civil rights or obligations within a reasonable time in cases which were concluded with the issuance of a final judicial decision are: (a) in relation to district court cases, the administrative President of any District Court who, in a case in which, according to the action, the plaintiff's right to determination of his civil rights or obligations within a reasonable time has been violated, did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate. (b) in relation to Supreme Court cases, three judges of the Supreme Court, as the Supreme Court may in the event designate. (2) The judgment of the court with jurisdiction under sub-section (b) of paragraph (1)is final and is not subject to appeal.” “(1) Without prejudice to the right to institute an action under sections 4 and 5, a person who is a party in a pending case to which this law applies has the right at any stage of the proceedings whilst the case is pending to have recourse to the legal remedies provided for in sub-paragraph (2) in relation to the allegation that in the case his right to determination of civil rights or obligations within a reasonable time has been violated. (2) For the purposes of sub-section (1) a party who alleges that there has been a violation of his right to determination of his civil rights or obligations within a reasonable time in a pending district court or Supreme Court case may at any stage of those proceedings have recourse by instituting an originating application against the Republic to the court with jurisdiction as provided by section 8 for the examination of the allegation and the granting of remedies for the violation provided for by this Law and for the issuance of a decision on these matters. (3) the provisions of paragraphs (1) and (2) are applied also in relation to cases which were pending at any stage at the date of entry into force of the present Law. (4) There is no suspension or adjournment of any procedure in a pending case by reason of an application made under this section or pending the conclusion of its examination. ...” “(1) Irrespective of the provisions of any other law, the court which is hereby granted jurisdiction to examine and determine an allegation and to grant remedies in an originating application under section 7 is: (a) in relation to a district court case which is pending at that stage before a district court, the administrative President of any District Court who does not exercise duties at the court in which the case is pending and who did not participate in any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in question and did not participate in any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate. (b) in relation to a district court case which is pending at that stage before the Supreme Court or to a Supreme Court case which is pending before the court in question at any stage, three judges of the Supreme Court, as the Supreme Court may in the event designate. Provided that by virtue of this paragraph under this section judges of the Supreme Court who did not participate at any stage of the case will be designated. (2) The judgment of the court with jurisdiction, under sub-section (b) of paragraph (1), is final and is not subject to appeal.” “In an action under sections 4 and 5 and in an originating application under sections 7 and 8, the court with jurisdiction gives judgment at the conclusion of the examination of the action or the application, as the case may be, or, in the event it reserves its judgment, it is to deliver it without delay.” “Actions and originating applications against the Republic under this Law are instituted against the Attorney-General of the Republic as defendant or respondent, depending on the case and the provisions of section 57 of the Courts of Justice Laws apply.” “The court, in order to determine whether there has been a violation of the right of the plaintiff or the applicant to determination within a reasonable time of his civil rights or obligations in an action under sections 4 and 5 and in an application under sections 7 and 8, takes into account – (a) the total period during which the determination of the rights or obligations in the case is pending or has lasted, taking into account the date on which the case was lodged with the court, and also where relevant any preceding period, (b) the nature of the case in which, according to the allegation of the plaintiff or the applicant, his right has been violated, (c) the possible complexity of the case, (d) the conduct of the plaintiff or the applicant in the proceedings of the case, (e) the conduct of the judicial authorities at the various stages and processes of the case, including, where relevant, the execution procedures, and the prosecution of the case in the said stages and procedures, (f) the conduct of other authorities of the Republic, where relevant, at the stage and procedures of execution, as well as at any relevant stage and procedures prior to the date the case was lodged with the court, (g) any other factors taken into account by the European Court of Human Rights as relevant to the matter in issue as these arise from its relevant case-law on the subject.” “Where in an action under sections 4 and 5 or in an application under sections 7 and 8 the court considers that the right of the plaintiff or applicant to determination of his civil rights or obligations within a reasonable time has been violated, the plaintiff/applicant is entitled: (a) to compensation for any pecuniary damage, loss, costs, and expenses proved to have been sustained on account of the violation; (b) to compensation for non-pecuniary damage or injury suffered on account of the violation; (c) to legal costs proved to have been incurred on account of the violation. (2) For ascertaining the damage sustained on account of the violation as provided in sub-section (1) and assessing and awarding the compensation provided for under sub-section (1), the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they can be determined from its case-law in analogous cases of violation of Article 6.1 of the Convention, and the amounts of compensation awarded by the said Court in such analogous cases.” “In examining an application made under sections 7 and 8 concerning the issue as to whether the applicant's right to determination of his civil rights or obligations within a reasonable time has been violated, the court exercises its judgment in relation to factors referred to in paragraphs (a)-(g) of section 11 after hearing the applicant and the Attorney-General of the Republic, by reference to the records of the proceedings and the contents of the file or files at first instance, or of any appeal of the case in which the applicant alleges that there has been a violation of his said right.” “(1) Where in an application under sections 7 and 8 the court decides under the present Law that there has been a violation in a pending case of the applicant's right to determination within a reasonable time of civil rights or obligations, the said court transmits its judgment immediately to the Supreme Court. (2) If the case concerning which the competent court issued its judgment and transmitted it to the Supreme Court under sub-section (1) is still pending, the Supreme Court issues such directions as under the circumstances it considers necessary to accelerate the procedure in the pending case, so as to prevent any continuance of the delay or any new delays, and avoid the possibility of continuation of the violation or new violations of the rights of any party in the pending case: Provided that a judge or judges of the Supreme Court who had participated in any stage of the examination of the pending case shall not participate in the issuing of directions. (3) Directions under sub-section (1) may include amongst other things- (a) that the pending case be set down immediately for directions before the court, or for trial (b) that pleadings which may not yet have been filed be so filed within deadlines specified in the directions, (c) that the record of the proceedings be prepared; (d) that costs which may have been awarded be subject to taxation (e) that priority be given to the conduct of the hearing of the case or the hearing of any interim applications; (f) that priority be given to the completion of any interim application procedures, or of other interim procedures, (g) that priority be given to the delivery of a judgment reserved in the case or in an interim application, (h) that priority be given to the completion by the judicial authorities of the execution procedures of a judgment given in the case to the extent that such authorities are involved. (4) Directions under sub-section (3) for accelerating the procedure in a pending case are issued irrespective of the fact that the relevant judgment which has been transmitted may have been given in accordance with paragraph (a) of sub-section (1) of section 8, and/or has been appealed against by the Attorney General.”