CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 septembre 2002

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s988562EE { width:30.55pt; display:inline-block } .s91F1BE8E { width:231.82pt; display:inline-block } .sDEA786DA { width:210.67pt; display:inline-block } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 62233/00 by Lefkos P. GEORGIADES against Cyprus The European Court of Human Rights (2 nd Section), sitting on 24   September 2002 as a Chamber composed of   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   Gaukur Jörundsson ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni , judges , and   Mr   T.L. Early , Deputy Section Registrar , Having regard to the above application introduced on 28   July 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, Mr Lefkos P. Georgiades, is a Cypriot national, who was born in 1919 and lives in Nicosia. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 January 1980, a building society (“the plaintiff”) lodged civil action no.   366/80 in the District Court of Nicosia against the applicant’s mother claiming an amount of 7,200 Cypriot pounds (“CYP”) for work done and for which the applicant’s mother had refused to pay on the ground that the plaintiff had failed to produce a certificate from the architect that the work had in fact been carried out. The Government submit that the plaintiff had made the applicant a party to the action, naming him as defendant 1 in the relevant writ of summons and serving him with the writ, not in his personal capacity, but in his capacity as representative of his mother, Alexandra Georgiadou, and of Elli Meyes. According to the power of attorney, the applicant was duly authorised to act on their behalf in the proceedings. As from 13 March 1990, following the death of Alexandra Georgiadou and in accordance with a court order made in pursuance of an application filed by the plaintiff, the title of the action was amended and the applicant was made a defendant in his capacity as administrator of the estate of the deceased Alexandra Georgiadou as well as in his capacity as representative of Elli Meyes. The applicant filed his defence on 2 October 1980, after having applied three times for an extension of the time-limit. These extensions were granted with the plaintiff’s consent. On 2 October 1980 the applicant’s mother submitted a counterclaim for the sum of CYP 13,191 for building defects and delays. The pleadings were completed on 11 November 1980. On 7 April 1981 the District Court set down the case for directions for 1 June 1981. The hearing fixed for 14 November 1981 was adjourned by the District Court to 18 December 1981. An interim application filed by the applicant on 23 December 1981 was adjourned three times with the consent of the parties and then granted on 23 January 1982. The hearing was fixed for 15 November 1982. However, on that date it was adjourned first until 11 April 1983 and then until 12 October 1983. On that last date the applicant proposed a further adjournment in order to modify his defence. He filed the modified defence on 21 January 1984. On 23   May 1984 and 13 December 1984 the District Court adjourned the hearing for want of time. On 6 May 1985 both parties requested the adjournment of the hearing fixed for that date in order to refer the case to arbitration. However, on   9   June 1985 the applicant changed his mind and the court set down the action for a hearing on 21 February 1986. On that date the hearing commenced, but it was again adjourned at the applicant’s request in order to prepare the defence in the light of the testimony given by a witness for the plaintiff. The hearing was fixed for 2 June 1986. However, it was adjourned twice at the applicant’s request until 11 December 1987. In the meantime, there had been a change to the composition of the District Court and the action, already heard in part, was fixed for a hearing de novo for 18 May 1987. Subsequently, the hearing was again adjourned at the request of the applicant’s lawyer or the plaintiff’s lawyer. On 31 January 1990 the hearing was adjourned owing to the death of Alexandra Georgiadou, which necessitated the filing of an application by the plaintiff to amend the title of the action. The pleadings with the amended title were closed on 3 June 1990. On 5 June 1990 the applicant wrote to the court asking it to schedule the hearing for a date sometime after the end of October 1990. He gave as his reason that he would be abroad up until that time. The court set down the case for directions on 6 May 1991 and fixed the date of the hearing for 14 October 1991. The hearing commenced on that date, but was adjourned until 28 January 1992 upon the plaintiff’s request. It had to be again adjourned until 14 February 1992 owing to pressure of business of the District Court. It was further adjourned until 17   March 1992 upon the joint request of the parties and again until 3 July 1992. On that last date the court adjourned the action for directions following the applicant’s request that the case be scheduled to be heard after the summer recess as the appointed referee was absent abroad and was not expected to return within the next two months. The action was again adjourned twice for directions until 21 December 1992 and 19 February 1993 on the joint application of the parties in order to enable the referee to complete his report. The report was eventually prepared on 12 March 1993. On 10 May 1993, the date on which the directions hearings was to take place, the applicant failed to appear before the District Court. On 14 April 1993 he filed an application seeking a court order to set aside the referee’s report. The action was again adjourned twice pending the outcome of this application. The hearing on the application was held on 13 January 1994. Following this hearing, the parties agreed to set aside the referee’s report and to appoint an arbitrator by agreement. On 27   September 1996 the District Court of its own motion fixed the case for directions for 17 October 1996 and gave notice to the parties to appear before it on that date. On 7 November 1996 the District Court stated that, in view of the fact that the applicant had failed over the course of two years to make an application to have the action set down for hearing and that the parties had failed to fulfil their undertaking of 13 January 1994 to appoint an arbitrator, it had to determine whether to dismiss both the action and counterclaim. On 14   November 1996 the District Court decided to set down the action for trial in view of the applicant’s declared wish not to have recourse to arbitration. The District Court accordingly fixed the action to be heard de novo on 10   January 1997, having regard to the parties’ proposal of 14 November 1996 to have the hearing date fixed for the month of January. However, the hearing was adjourned until 18 April 1997 and again until 20 October 1997 at the request of the parties. On that last date the hearing was adjourned again as a result of the withdrawal of the plaintiff’s lawyer. On 25   November 1997 the court fixed the hearing for 11 March 1998. However, on 12 March 1998 the parties agreed to submit the dispute to arbitration and designated an arbitrator by agreement. On 15 September 2000 the decision of the arbitrator was delivered and confirmed by the District Court. COMPLAINT The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. THE LAW The applicant alleges a violation of Article 6 § 1 of the Convention, which insofar as relevant reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 1.     The Government submit that the applicant cannot be considered a “victim” within the meaning of Article 34 of the Convention. They maintain that his status in the proceedings was that of the representative of his mother, Alexandra Georgiadou, and of Elli Meyes. In addition, according to the terms of the contract, it was Alexandra Georgiadou, Elli Meyes and another person, acting through the applicant, who had engaged the building society to carry out work on the plot and the building on it which these persons owned. The applicant had no ownership rights with respect to the plot or the building. Even after his mother’s death, when he acted as an administrator of her estate, the applicant never alleged that the counterclaim he was pursuing in that capacity concerned him personally and he never attempted to join that claim in a personal capacity. The Government further stress that the right to lodge a complaint under Article 34 alleging a violation of the “reasonable time” requirement is personal to those whose rights and obligations fall to be determined in the domestic proceedings. The fact that the domestic proceedings concerning the contractual rights and obligations of Alexandra Georgiadou continued after her death through the applicant as administrator of her estate, does not render him either in this capacity or in the capacity of an heir a “victim ” vis ‑ à ‑ vis the length of the proceedings. The applicant stresses that he is a close relative of the victim – his mother. As her genuine and rightful heir, he has personally suffered a pecuniary loss. The Court recalls that the concept of “victim” as used in Article 34 of the Convention must be interpreted autonomously and independently of domestic law concepts such as capacity to bring or take part in legal proceedings (decision of 6 April 1995 on the admissibility of the application n°   24581/94, Greek Federation of Customs Officers v.   Greece, D.R. 81 ‑ B, p.   123). The Court further recalls that the term “victim” refers to the person directly affected by the act or omission at issue, the existence of a violation being conceivable even in the absence of prejudice. In the present case the Court notes that from 26 January 1980, the date on which the building society lodged action no.   366/80, to 13 March 1990, the date of the applicant’s mother’s death, the applicant acted as the latter’s representative. He subsequently acted as the administrator of her estate. The Court agrees with the Government that the applicant had not joined the proceedings in his personal capacity. However, ever since his mother’s death, the applicant in addition to his status as administrator of her estate became his mother’s legitimate heir. In that connection, the outcome of the proceedings in which he acted as administrator inevitably had an impact on his financial situation as an heir to her estate. Therefore, it can be said that the applicant had, at least as from 13 March 1990, a sufficient personal interest in the outcome of the proceedings to enable him to be considered a “victim” within the meaning of Article 34 of the Convention. For these reasons, and to that extent, the Court dismisses the Government’s objection. 2.     As regards the merits of the application, the Government submit that the applicant was primarily responsible for the length of the proceedings. The Government do not dispute the fact that the District Court was responsible for a number of adjournments. However, the applicant himself not only requested many adjournments but also consented to all requests for adjournments made by the plaintiff. It is thus clear that neither party was in a hurry to have the action determined. In the Government’s submission, the conduct of both parties was characterised by a lack of diligence and the Government should not be penalised for delays in the proceedings caused by repeated applications for amendment of pleadings and other applications by the applicant, one of which was in fact filed after the commencement of the hearing, or by the parties’ failure to appoint referees and arbitrators despite having informed the District Court that they would do so. The applicant claims that the District Court never ensured the expeditious examination of the action. It kept postponing the hearings because the panel of judges dealing with the case changed three times with the result that it had to start again from the beginning with each intervening change. The Court observes that the period to be considered did not begin to run as from the date on which the action was brought before the competent court (26 January 1980), but as from 13 March 1990 - the date on which the applicant was made a defendant to the proceedings in his capacity as administrator of his mother’s estate. In order to establish whether the time which elapsed following this date was reasonable, it is however necessary to take account of the stage reached in the proceedings on that date. The period in question ended on 15 September 2000, the date on which the decision of the arbitrator was delivered and adopted by the District Court. The relevant period therefore lasted approximately ten years and six months. The reasonableness of the length of proceedings is to be determined in the light of the criteria laid down in the Court’s case-law and with reference to the circumstances of the case, which in this instance call for an overall assessment (see the Paskhalidis and Others v.   Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997 ‑ II, §   34). The Court recalls that it has consistently held that applicants cannot be blamed for making full use of the remedies available to them under domestic law. Moreover, the applicant’s behaviour constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account in determining whether or not the reasonable time referred to in Article 6 § 1 has been exceeded ( Sablon v.   Belgium n°   36445/97, §   95). In the present case, the Court notes, in agreement with the Government, that the delay in the proceedings was mainly due to the numerous requests for adjournments submitted by the parties or to their own inertia. On 5 June 1990 the applicant requested the court to schedule the hearing for a date after the end of October. Furthermore, the following adjournments were granted following the requests of the applicant himself or of both parties: 6 December 1991, 14 February 1992, 3 July 1992, 20 October 1992, 21   December 1992, 9 February 1993 and 31 May 1993. Subsequently, in the period between 13 January 1994 and 17 October 1996 neither of the parties applied to have the proceedings set down for hearing. On 14 November 1996 the parties proposed to have the hearing fixed for January but the hearing was again adjourned until 18 April 1997, and again until 20 October 1997 at the request of the parties. On that last date the hearing was again adjourned as a result of the withdrawal of the plaintiff’s lawyer. Finally, more than two years elapsed between the date on which the parties agreed to submit their case to arbitration (13 March 1998) and the date on which the District Court decided to fix, on its own initiative and in order to remedy the parties’ lack of diligence, the case for directions (6 June 2000). In these circumstances, the Court considers that the blame for the delay in bringing the proceedings to a close cannot be attributed to the respondent State and its courts. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   T.L. Early   J.-P. Costa Deputy Registrar   President