CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 avril 2001

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Costa , President ,   Mr   L. Loucaides ,   Mr   P. Kūris ,   Mrs   F. Tulkens ,   Mr   K. Jungwiert ,   Mrs   H.S. Greve ,   Mr   M. Ugrekhelidze , judges , and   Mrs   S. Dollé , Section Registrar ,     Having regard to the above application introduced on 16 March 1999 and registered on 26 April 1999,     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,     Having deliberated, decides as follows: THE FACTS The applicant is a British citizen and sole heir and administrator of the estate of the late David Edgar Jones. She is represented before the Court by Mr A. I. Dikigoropoulos, a lawyer practising in Nicosia. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. According to the applicant, David Jones and his siblings, plaintiffs in action No.   4745/83 in the Nicosia District Court, became the registered owners of two properties situated at Atsas in the village of Evrychou, after a local enquiry of the Land Registry Office for the purpose of widening a street, and after the death of the plaintiffs’ mother, Paraskevou Mateidis, on 18   September1967. Before that date the properties had been registered in the name of Yangos Mateidis who had inherited it from his sister, Eleni, to whom the properties had been donated by their parents. In 1977 a certain Ellada Kyriakou filed action No.   4386/77 in the Nicosia District Court claiming that she and her husband, Eustathios, were the owners of the properties by purchase and/or by long uninterrupted adverse possession. On 29 November 1977 the court made an order for a substituted service of the writ of summons on David Jones by publication of the writ in the newspaper the “Cyprus Mail”, by posting a copy of the writ at two coffee-shops in the village Evrychou (where the properties were situated), by serving it upon a certain Pantelis Soliatis of Evrychou and by posting a copy on the court’s notice board. David Jones and his siblings failed to enter a notice of appearance and, when the action was fixed for hearing, the case was dealt with in their absence. Having heard the evidence of the witnesses, the Nicosia District Court was satisfied that Eustathios Kyriakou had been in possession of the two properties for more than the prescribed period, adversely, peacefully and uninterruptedly. On 24 March 1980 the court ordered the cancellation of the registration of the properties in the name of David Jones and their registration in the name of Eustathios Kyriakou, who subsequently had the plots registered in the name of his daughters by donation. Thereafter, one of the daughters mortgaged the properties in favour of the Latsia Society Ltd. The writ of summons in action No.   4386/77 was never served on the plaintiffs who were at all times residents of the United Kingdom or Australia and whose address was unknown. They all had, however, a representative in Cyprus, Mr Dimitrios Apostolou. In 1982 David Jones retired to Cyprus. When he discovered that the registration of the properties had been cancelled, he lodged action No.   4745/83 on 20 August 1983 with the Nicosia District Court in order to have the judgment in action No.   4386/77 set aside. He was joined in this action by his siblings. They maintained that the judgment had been obtained by fraud and that there had been a breach of the procedural rules concerning the summons to appear. They alleged that they should have been personally notified of the writ of summons. On 29 October 1993 the Nicosia District Court dismissed the action, referring extensively to Cypriot and British case-law on the matter. It held that, in deciding action No.   4386/77, the District Court had issued an order according to which the notification of the writ of summons was to take place by its publication in the “Cyprus Mail” newspaper and a copy of it placed on the notice-boards of two coffee-shops in the village of Evrychou, as well as that of the District Court of Nicosia. In exercising its discretionary powers, the District Court considered that such a notification was effective as the plaintiffs, whose nationality and address were unknown to the court, were abroad and the relevant documents, which had been sent to them by one of their relatives, were returned undelivered. It concluded that, although this method of notification was not wholly efficient, it was important for citizens who had had their rights recognised by a court decision to be able to rely on such a decision. In particular, as to the allegation that the default judgment was obtained by fraud, the court found that the plaintiffs had failed to prove the existence of any such fraud. As to the allegation that there had been a procedural irregularity in that a notice of a writ of summons instead of the writ of summons itself should have been served upon them, being non-Cypriots, the court held that such an irregularity would result in the annulment of the judgment ex debito justitiae . However, the court concluded that David Jones and his siblings had failed to produce evidence to establish that they were not Cypriot nationals. The plaintiffs appealed to the Supreme Court which dismissed the appeal on 22 September 1998. The Supreme Court adopted the conclusions of the District Court. It further observed that any procedural irregularity, which would have led to the proceedings in action 4386/77 being annulled, had become a “mere irregularity” by reason of the new Order 64 of the Civil Procedure Rules which was published on 24 February 1995 and which (in accordance with the case-law that followed) had retrospective effect. This observation related only to the alleged irregularity that was brought about by the issue of the writ of summons instead of the issue of a notice of the writ. In any event, the Supreme Court dismissed the submission that there had been an irregularity with respect to the service of the writ, as David Jones and his siblings had failed to prove that they were non-Cypriots. Finally, the Supreme Court held: “However, the respondents could submit to the Court an application in action 4386/77 for setting aside [the judgment], explaining the default of appearance as well as why such a period of time has passed until they took such a step [filing the application] and giving grounds for a prima facie case, so as to enable the Court to exercise its discretionary power … The respondents did not follow such a course and no such issue was raised for determination.” B.     Relevant domestic law and practice Order 2, Rule 2 of the Civil Procedure Rules reads as follows: “No writ of summons for service out of Cyprus of which notice is to be given out of Cyprus, shall be sealed without the leave of the Court or a Judge.” Order 26, Rule 14 of the Civil Procedure Rules provides as follows: “Any judgment by default, whether under this Order or under any other of these rules, may in a proper case be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit.” Domestic case-law has made it clear that the primary consideration for the court of review is whether the defendant’s case has merits to which heed should be paid ( Ioannis Kotsapas v .   Titan Construction , [1961] CLR 317). More recent authorities have reiterated the principle as follows: “The effect of the case-law is that the court must not hasten to deprive a party of his right to be heard in his case, so long as he discloses merits. But the court may, nevertheless, decline to re-open the case if his conduct is such as to strike at the root of the administration of justice. Where the conduct of the party applying to set aside a judgment is inexcusable, contumacious, to the extent of grossly disregarding the judicial process or the rights of his adversary, the court may, in its discretion, refuse to set aside the judgment.” ( Phylactou v. Michael [1982] 1 CLR 204). The Government stress that, in the context of an application to set aside a default judgment, the defendant does not have to show that he has not been personally notified of the proceedings in which the default judgment was delivered. He is only required to explain why he failed to appear in order to show that his non-appearance was not the result of any gross disregard for the judicial process. COMPLAINTS 1.     The applicant complains under Article   6 §   1 of the Convention that she (through the late David Jones) was not properly summoned to appear in the proceedings which led to the deprivation of her property. 2.     The applicant also complains that she has been deprived of her property in breach of Article   1 of Protocol No.   1. THE LAW 1.     The applicant alleges a violation of her right to a fair hearing because of the method of service of the writ of summons and/or the decision of the Supreme Court to disregard the irregularities committed in respect of that service, in the proceedings which resulted in the applicant’s loss of ownership of certain properties. Article   6 §   1 of the Convention, insofar as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” (a) The Government submit that the whole application is inadmissible as being incompatible ratione temporis with the provisions of the Convention. The proceedings in action No.   4386/77 ended with the District Court’s judgment of 24 March 1980, removing the title of David Jones and his siblings to the disputed property. No attempt was made thereafter by them to re-open that case or to have the action re-tried in their presence. The fresh action which they filed involved no such procedure. Accordingly, the applicant’s complaints relate to a decision which was made long before Cyprus recognised the right of individual petition under former Article   25 of the Convention on 1 January 1989. The applicant rejects this argument and contends that the proceedings ended with the judgment of the Supreme Court on 22 September 1998 in action No.   4745/83, whereby the result of the earlier action was ratified. The Court considers that the nature, effect and link between the two proceedings goes to the merits of the applicant’s claims, which cannot, therefore, be rejected as being incompatible ratione temporis with the provisions of the Convention. (b) The Government next submit that the applicant failed to exhaust domestic remedies. They contend that the applicant is in effect complaining that David Jones was deprived of his right to a fair hearing because he was not given the opportunity to be heard in the proceedings in which his civil rights and obligations were determined, that is the proceedings in action No.   4386/77. However, in that action David Jones did not seek its re-opening by having the default judgment set aside on the ground that it had been obtained in his absence. By virtue of Order 26, Rule 14 of the Civil Procedure Rules, he could have asked for this, explaining why he had been absent at the material time, the reason for the delay in making the application and providing a prima facie case on the merits of his claim. Instead, he filed a fresh action (No.   4745/83) whereby he claimed that the judgment of 24   March 1980 was null and void on the ground that it was fraudulently and/or irregularly obtained. This action could not have led to a fresh determination of the merits of the case. It did not involve a re-examination of the rights and obligations determined by the default judgment. The applicant submits that Order 26, Rule 14 of the Civil Procedure Rules provides for a procedure which can set aside a default judgment but was not the only remedy available, as was shown by the course which the family pursued. In fact, had such an application been made and had it been successful, the District Court would have ordered the applicant’s family to pay the costs of the plaintiffs in action No.   4386/77 and the direct retrial of the action, without going into the merits of the plaintiff’s claim. The action engaged by the family was based on several legal precedents in the case-law of British courts (Jonesco v. Beard (HL) (1930) All E. R. Rep. 483; Kennedy V. Dandrick (1943) 2 All E. R. 606; de Lasala v.   de Lasala (PC) (1979) 2 All E. R. 1146). They had received legal advice to this effect. The Court notes that the positions of the parties as to the effectiveness of the available domestic remedies used by the applicant’s family differ radically. However, it considers that it is not required to determine this matter as, anyway, it finds that this part of the application is inadmissible for the reasons outlined below. (c) As regards the substance of the complaint, the Government recall that the method of service of the writ of summons did not involve the personal notification of David Jones or his relatives. They reiterate their non-exhaustion arguments and stress that the issue of a judgment in absentia does not in itself amount to a violation of the right to a fair hearing under Article   6 §   1 of the Convention. The critical question is whether, once the litigant becomes aware of the proceedings, he is provided with an effective legal procedure whereby he can obtain a fresh determination of the merits of the case (cf., mutatis mutandis, the Colozza v. Italy judgment of 12 February 1985, Series A No.   89, p. 15, §   29). This the applicant’s family could have had if they had sought the re-opening of the original proceedings. Moreover, as regards the fresh proceedings which they lodged, they were able to put their case fully and the Supreme Court rejected, with clear and unambiguous reasoning, their complaints of irregularity and fraud in the original proceedings. The applicant seeks to substantiate before the Court that the original proceedings had been irregularly served and fraudulently brought. However, the Court observes that it is not a court of appeal from the decisions of domestic courts and that, as a general rule, it is for those courts to assess the evidence before them. The Court’s task under the Convention is to ascertain whether the proceedings as a whole were fair (cf. Garcia Ruiz v. Spain , n° 30544/96, [GC], judgment of 21 January 1999, ECHR   1999 ‑ 1,   §§   28-29; mutatis mutandis, the Doorson v. the Netherlands judgment of 26   March 1996 , Reports of Judgments and Decisions 1996-II, p. 470, §   67). The Court notes that the applicant’s family had a full opportunity to put forward their arguments, and that adequate reasons were given by the domestic courts for their rejection. In these circumstances, the Court concludes that the present case does not disclose any appearance of a violation of Article   6 §   1 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article   35 §§   3 and   4 of the Convention. 2.     The applicant also alleges, without argument, that the conduct of these proceedings entailed a breach of Article   1 of Protocol No.   1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government submit that the issue of deprivation of property has been raised by the applicant in a rather indirect manner and is closely linked to the questions under Article   6 of the Convention. Moreover, the applicant cannot claim that she was deprived of her property. One should not lose sight of the fact that the disputed properties involved the rights of third parties which were recognised by the domestic courts. Finally, the Government point out that David Jones and his estate had remedies at their disposal to restore their property rights. The Court agrees with the Government that the rights of the third parties to the present domestic proceedings must be taken into account. Moreover, the applicant has not shown that the domestic courts imposed upon her or her relatives an undue burden when balancing the conflicting interests of the parties. In these circumstances, the Court concludes that the applicant’s claim under Article   1 of Protocol No.   1 is unsubstantiated and must, therefore, be rejected as being manifestly ill-founded, pursuant to Article   35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   S. Dollé   J.-P. Costa Registrar   President