CEDH · CASELAW;REPORTS;ENG — 15 janvier 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                                  FIRST CHAMBER                            Application No. 28054/95                               Michael Mavronichis                                     against                                     Cyprus                            REPORT OF THE COMMISSION                          (adopted on 15 January 1997)                                TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6-15) . . . . . . . . . . . . . . . . . . . . . . . . . . .2   III.   OPINION OF THE COMMISSION       (paras. 16-31). . . . . . . . . . . . . . . . . . . . . . . . . . .5         A.     Complaint declared admissible             (para. 16). . . . . . . . . . . . . . . . . . . . . . . . . .5         B.     Point at issue             (para. 17). . . . . . . . . . . . . . . . . . . . . . . . . .5         C.     As regards Article 6 para. 1 of the Convention             (paras. 18-30). . . . . . . . . . . . . . . . . . . . . . . .5               CONCLUSION             (para. 31). . . . . . . . . . . . . . . . . . . . . . . . . .8   APPENDIX:    DECISION OF THE COMMISSION AS TO             THE ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . .9   I.     INTRODUCTION   1.     The present Report concerns Application No. 28054/95 introduced on 10 July 1995 against Cyprus and registered on 28 July 1995.         The applicant is a Cypriot national born in 1949 and resident in Nicosia.         The applicant is represented before the Commission by Mr. Christos Clerides, a lawyer practising in Nicosia.         The respondent Government are represented by their Agent, Mr. Alecos Markides, the Attorney-General of the Republic of Cyprus.   2.     The application was communicated to the Government on 29 November 1995. Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 26 June 1996. The decision on admissibility is appended to this Report. The parties have submitted observations on the merits of the case, the Government on 11 September 1996 and the applicant on 18 September 1996.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 15 January 1997 in accordance with Article 31 para. 1 of the Convention, the following members being present:               Mrs.   J. LIDDY, President             MM.    L. LOUCAIDES                   B. MARXER                   B. CONFORTI                   N. BRATZA                   I. BÉKÉS                   G. RESS                   A. PERENIC                   C. BÎRSAN                   K. HERNDL                   M. VILA AMIGÓ             Mrs.   M. HION   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Republic of Cyprus.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   6.     On 2 November 1981 a public body, the Industrial Training Authority, appointed and employed in the position of Head of Accounts a certain Mr. I instead of the applicant, who was the only other candidate and who was found to possess higher qualifications than those required for the post. The applicant filed a recourse before the Supreme Court against I's appointment (Case No. 478/81).   7.     I resigned in October 1982 and the post of Head of Accounts was abolished in November 1983.   8.     On 6 June 1984 the Supreme Court, ruling on a preliminary objection by the Industrial Training Authority, found that, although the post had been abolished, the applicant's recourse had not become devoid of interest. The court considered that, if it found that the applicant had been erroneously not chosen for appointment, it would appear that the applicant had suffered a detriment for the purposes of Article 146 para. 6 of the Constitution as a result of his non-appointment. On 22 February 1986 the Supreme Court declared the decision of the Industrial Training Authority null and void on the ground that the Authority had disregarded without any justification the applicant's higher qualifications.   9.     On 13 April 1987, the applicant filed, before the District Court of Nicosia, a civil action against the Industrial Training Authority claiming damages under Article 146 para. 6 of the Constitution (Action No. 3350/87). The statement of defence was filed on 8 October 1987.   10.    On 18 April 1988 the action was fixed by the court for mention on 16 May 1988. On that date both parties requested the court to fix a date for hearing the case. The court fixed a hearing for 8 November 1988. On that date the court by its own motion adjourned the hearing until 20 April 1989. On 20 April 1989 the court again by its own motion adjourned the hearing until 27 October 1989. On 26 October 1989 the defendants applied for an adjournment. The applicant did not object. The hearing was adjourned until 7 February 1990.   11.    On 7 February 1990 the court started the examination of the case. However, as this was not concluded on that date, the court adjourned until 7 March 1990. On that date the applicant's advocate asked for an adjournment. The defendants had no objection and the court fixed the hearing for 5 April 1990. On that date the examination of the case continued. Since, however, it was not concluded, the court further adjourned until 10 May 1990. On that date the court by its own motion adjourned the hearing until 5 June 1990. On 5 June 1990 the hearing of the case was completed and the court reserved its judgment.   12.    On 30 November 1990 judgment was issued in the applicant's favour for the sum of 2,128 Cyprus pounds. On 8 January 1991, the applicant filed an appeal before the Supreme Court (Appeal No. 8331), contesting the amount adjudicated. The Industrial Training Authority filed a cross-appeal claiming that the action should have been dismissed.   13.    On 12 August 1994 the applicant complained in writing to the registrar of the court about the delays. On 15 March 1995 a hearing was held in the case. The parties agreed that the cross-appeal should be heard first, because if it was allowed this would dispose of all the issues pending before the court.   14.    On 20 June 1995 the Supreme Court considered that its decision of 22 February 1986 which declared the appointment of I null and void had not created an obligation for the Industrial Training Authority to appoint the applicant and, as a result, the applicant was not an aggrieved person for the purposes of Article 146 para. 6 of the Constitution. The subsequent abolition of the post could not give rise to a right to compensation to the extent that it had not been annulled. The Industrial Training Authority was in principle under an obligation to review the question of who should be appointed to the post in the light of the above-mentioned decision of the Supreme Court. However, in deciding whether it should do so, the Authority was entitled to take into consideration the subsequent abolition of the post which was not unlawful. In the light of the above, the Supreme Court decided to allow the cross-appeal. The applicant's action was dismissed.   B.     Relevant domestic law   15.    The Constitution of Cyprus provides as follows:         Article 146         1.     The Supreme Constitutional Court shall have exclusive       jurisdiction to adjudicate finally on a recourse made to it on       a complaint that a decision, an act or omission of any organ,       authority or person, exercising any executive or administrative       authority is contrary to any of the provisions of this       Constitution or of any law or is made in excess or in abuse of       powers vested in such organ or authority or person.         4.     Upon such a recourse the Court may, by its decision -       (a)    confirm, either in whole or in part, such decision or act       or omission; or       (b)    declare, either in whole or in part, such decision or act       to be null and void and of no effect whatsoever; or       (c)    declare that such omission, either in whole or in part,       ought not to have been made and that whatever has been omitted       should have been performed.         6.     Any person aggrieved by any decision or act declared to be       void under paragraph 4 of this Article or by any omission       declared thereunder that it ought not to have been made shall       be entitled, if his claim is not met to his satisfaction by the       organ, authority or person concerned, to institute legal       proceedings in a court for the recovery of damages or for being       granted other remedy and to recover just and equitable damages       to be assessed by the court or to be granted such other just       and equitable remedy as such court is empowered to grant.         Article 172               The Republic shall be liable for any wrongful act or       omission causing damage committed in the exercise or purported       exercise of the duties of officers or authorities of the       Republic.               A law shall regulate such liability.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   16.    The Commission has declared admissible the applicant's complaint that his claim for compensation was not heard within a reasonable time.   B.     Point at issue   17.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   18.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   19.    The Commission notes that the parties submitted extensive argument on the nature of the proceedings by which the applicant had challenged before the Supreme Court I's appointment to a post in the public sector for which the applicant had been the only other candidate (recourse No. 478/81). However, this was done in the context of addressing the issue of whether the compensation proceedings (action No. 3350/87) which the applicant instituted after the conclusion of the first set of proceedings involved a determination of civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The length of the first set of proceedings never formed the subject-matter of the present application which concerns the length of the proceedings on compensation only.   20.    The applicant submits that Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the proceedings for compensation which were separate from the proceedings by which he sought to have his right to be employed in the public sector determined. The compensation proceedings were ordinary civil proceedings in the context of which the courts usually applied the rules concerning master and servant. The Supreme Court, when hearing his appeal, exercised its normal appellate jurisdiction. In any event, the Government were not right in arguing that Article 6 para. 1 (Art. 6-1) did not apply in the first set of proceedings. Any appointment in the public sector is based on a contract between the State and the employee and in Cyprus most disputes concerning the terms of employment of civil servants are decided by the civil courts.   21.    The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention does not apply in the proceedings in question. According to the case-law, Article 6 (Art. 6) does not apply to disputes over rights relating to the civil service. Moreover, the applicant's case can be distinguished from Darnell v. United Kingdom (No. 15058/89, Dec. 10.4.91, D.R. 69 p. 306) in that the applicant sought permanent employment in the public sector and domestic law did not give him access to the ordinary courts to challenge the failure of the authorities to appoint him. By lodging recourse No. 478/81 the applicant sought to challenge before the Supreme Court and under Article 146 para. 1 of the Constitution an administrative act which determined a right he allegedly had under public law. The civil action No. 3350/87 which the applicant brought before the District Court under Article 146 para. 6 of the Constitution was consequential to his previous recourse, in that it presupposed a decision by the Supreme Court declaring a decision of the administration challenged under Article 146 para. 1 of the Constitution null and void.   22.    The Government further argue that a civil action for damages on the basis of Article 172 of the Constitution, which determines the civil liability of the State for wrongful acts and omissions, is to be distinguished from an action for damages under Article 146 para. 6 of the Constitution. Not every person who has succeeded in a recourse under Article 146 para. 1 of the Constitution is considered to be an aggrieved person under Article 146 para. 6. Moreover, the quantum of damages to be awarded in an action under Article 146 para. 6 of the Constitution is not assessed as in an ordinary action for damages. The award must be just and equitable. The civil court, in fixing the amount, takes into consideration the culpability of the administration and of the plaintiff and does not apply the law of master and servant.   23.    The Commission notes that the applicant was suing before a civil court a public authority for damages under Article 146 para. 6 of the Constitution as a person aggrieved by an administrative act declared to be void by the Supreme Court. The Commission considers that, given the position expressed by the Supreme Court on 6 June 1984, the proceedings instituted by the applicant involved a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law (see Eur. Court HR, Neves e Silva v. Portugal judgment of 27 April 1989, Series A no. 153, p. 14, para. 37). The Commission also considers that, in the particular circumstances, the nature of the act which has already been declared void in separate proceedings cannot be decisive for the issue of whether the action for damages involves a determination of civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. What is decisive is the "pecuniary" nature of the action for damages and in this respect the Commission considers that the case is similar to case of Editions Périscope (Eur. Court HR, Editions Periscope judgment of 26 March 1992, Series A no. 234, p. 66, para. 40). The differences between an action of damages under Article 146 para. 6 of the Constitution and an action for damages under Article 172 thereof, as highlighted by the respondent Government, do not justify, in the Commission's view, the approach proposed by the Government, given the pecuniary nature of the relevant claim as explained above. It follows that the purpose of the compensation proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   24.    With regard to the period to be considered, the Commission notes that the proceedings began on 13 April 1987. The period which the Commission has competence ratione temporis to examine began on 1 January 1989, when the recognition by Cyprus of the right of individual petition took effect. However, in assessing the reasonableness of the length of the proceedings account must be taken of the state of the proceedings on 1 January 1989 (cf. Eur. Court H.R., Foti and others judgment of 10 December 1982, Series A no. 56, pp. 18-19, para. 53). The proceedings ended on 20 June 1995. Consequently, the proceedings complained of lasted eight years, two months and eight days.   25.    The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   26.    The applicant submits that the case was not complex and that his request for an adjournment did not delay the proceedings for more than a month. The applicant further argues that he should not be blamed for not objecting on 26 October 1989 to the defendants' request for an adjournment. In any event, the above-mentioned request did not delay the proceedings for more than three and a half months. Finally, the applicant considers that there was no justification for the delays before the Supreme Court.   27.    The Government argue that the proceedings before the first instance court were not unreasonable in length, given the complicated nature of the issues involved and the fact that the hearing was once adjourned at the applicant's request and once at the request of the defendants to which the applicant did not object. The Government also contend that length of the proceedings before the Supreme Court was reasonable given the recent increase in the volume of litigation before that court.   28.    The Commission considers that the complexity of the case cannot explain in itself the length of the proceedings. It also considers that it is not necessary to determine whether the applicant or the public authorities were responsible for the delays before the first instance court. The Commission notes in this connection that before the Supreme Court there existed a period of inactivity of more than four years and two months, between 8 January 1991, when the applicant filed his appeal to the Supreme Court, and 15 March 1995, when the appeal was heard. The Commission considers that this delay is imputable to the State and that no convincing explanation for it has been advanced by the respondent Government. The excessive case-load of the Supreme Court does not constitute such an explanation.   29.    The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).   30.    In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.         CONCLUSION   31.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     M.F. BUQUICCHIO                                      J. LIDDY      Secretary                                         President to the First Chamber                             of the First Chamber