CASE OF DOUGLAS v. CYPRUS
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
4. The applicant was born in 1949 and lives in Nicosia. The applicant was married on 2 June 1974 in Nicosia. His marriage was dissolved on 16 March 1998. 5. On 6 August 1999 his former wife lodged an application (no.143/99) with the Nicosia Family Court for adjudication of certain property disputes between her and the applicant. On the same date the court issued an interim injunction prohibiting the applicant from selling, transferring or otherwise disposing of certain of his properties consisting of an apartment, a plot of land and two bank accounts. On 7 January 2000 the applicant submitted his defence and counter-claims. He claimed that he and his former wife had entered into an agreement in 1997 for the settlement of any potential property dispute. On 3 April 2000 his former wife filed her response to the applicant’s defence, and her defence in respect of his counter-claim. 6. The case was adjourned on at least two occasions at the request of the applicant. The hearing of the interim order application began on 8 March 2002. On 19 November 2002 it was decided that the prohibitory injunction would remain in force pending the final determination of the proceedings. An amendment was made in respect of the applicant’s plot of land, which would only be bound in respect of two thirds of the undivided share of the property. 7. On 28 November 2002, the applicant lodged an appeal against the injunction. He maintained that the court had erred in law in issuing it solely on the basis of the affidavit of his former wife and without further evidence substantiating her allegations. In another ground of appeal he complained about the delay that had occurred in the proceedings, which had severely restricted his professional activities. 8. On 12 March 2004 the Supreme Court dismissed the appeal and upheld the injunction as the applicant’s former wife had entered into sufficient detail in her affidavit to justify non inclusion of further relevant documents. The court nevertheless expressed its concern about the delay in the proceedings. 9. The examination of the main application (no.143/99) by the Nicosia Family Court began on 26 September 2003. Of the 29 sittings held between 23 October 2003 and 18 November 2004 at least one was adjourned at the applicant’s request. 10. On 11 March 2005, the Nicosia Family Court ordered the applicant to pay 41,000 Cypriot pounds (CYP) plus interest to his former wife. The court dismissed the applicant’s submission that an agreement had been concluded between himself and his former wife. The counter-claim lodged by the applicant was dismissed in its entirety. Moreover, the court considered that the applicant’s evidence had been unreliable and given in bad faith. It noted that he had been unable to control himself during the proceedings and had become disrespectful towards the court and his former wife’s counsel. 11. On 11 April 2005, the applicant lodged an appeal with the Supreme Court. 12. On 13 April 2005, the applicant’s former wife lodged with the Nicosia Family Court an application by summons requesting a ‘garnishee order’ (third party debt order). The application was set for hearing on 22 April 2005. On 28 April 2005 the applicant filed an objection and maintained that the application had been filed in bad faith. 13. On 28 April 2005 the applicant applied for suspension of the execution of the court’s decision dated 11 March 2005, until the examination of his appeal. This was set for hearing on 19 May 2005. On 16 May 2005 the applicant’s wife objected to his application as the applicant had not complied with the aforementioned court order. 14. On 17 June 2005 the Nicosia Family Court, following a hearing, dismissed the application for suspension of the court’s decision dated 11 March 2005. The court declined to grant the requested order in light of the applicant’s unreliability and the evident danger that his former wife would remain without a remedy in the event that the order was granted. The court rejected the applicant’s allegations that the application was made in bad faith and found his claim that he would face considerable financial difficulties in the event of non suspension unsubstantiated. The application was accordingly dismissed with legal costs awarded to the applicant’s former wife. 15. On the same date the court granted the garnishee order. Accordingly the applicant’s bank was ordered to pay his former wife the amount of CYP 41,000 with 8% interest from 6 August 1999 until payment and expenses. The court ordered the applicant’s former wife to guarantee the return to the applicant of the whole amount payable upon the execution of the court’s decision dated 11 March 2005 in the event that his appeal was successful. The guarantee would be renewable until the completion of the appeal proceedings. On 27 June 2005, the applicant lodged an appeal with the Supreme Court against the decision of the Nicosia Family Court dated 17 June 2005. 16. On 23 March 2007 the Supreme Court granted the applicant’s appeal against the family court’s judgment of 11 March 2005 and against its order of 17 June 2005. It noted that the first-instance court had found the applicant an absolutely unreliable witness and his evidence was, as such, dismissed in its entirety. It further noted that the first-instance court had based its conclusion as to the applicant’s reliability as a witness on various factors including his behaviour in and outside the court room. It was held that the first-instance court ought not to have taken those factors into account in the assessment of the applicant’s evidence and therefore the case was remitted for a retrial, but only in respect of the former wife’s claim over the applicant’s plot of land. 17. On 29 February 2008 judgment was issued by the family court in favour of the applicant’s former wife. The court noted that the proceedings had been delayed by the applicant, who failed to appear before the court on two occasions. It was found that no agreement had been concluded between the applicant and his wife as to any potential property dispute. Given his former wife’s contribution to his enrichment during the period of their wedlock it was held that she was entitled to a third of the value of his plot of land. 18. On 14 March 2008 the applicant lodged an appeal against the decision of the family court before the Supreme Court. These proceedings are currently pending.