(2001) 31 E.H.R.R. 54
Mavronichis v. Cyprus
Before the European
Court of Human Rights
27 April 1998
*1186 Mavronichis
v. Cyprus
Application No. 28054/95
(Length of compensation
proceedings instituted following successful annulment
of administrative act
rejecting candidature for public sector post)
Before the European
Court of Human Rights
ECHR
( The President,
Bernhardt; Judges Matscher, Pettiti, Spielmann, Valticos,
Palm, Loizou,
Casadevall, Van Dijk)
27 April 1998
H1 The
applicant applied for the position of Head of Accounts of the Industrial
Training Authority. Another individual was appointed, even though the applicant
was better qualified. The applicant brought recourse proceedings against the
Industrial Training Authority seeking compensation during which time the post
of Head of Accounts was abolished. The decision not to appoint the applicant
was declared null and void and, on 13 April 1987, the applicant commenced a
civil action claiming damages. A judgment was delivered in the applicant's favour
on 30 November 1990 which he then appealed on the issue of quantum and the
Industrial Training Authority cross-appealed. A final appeal judgment against
the applicant was made on 20 June 1995. Relying on Article 6(1) of the
Convention, the applicant complained that the time taken by the domestic courts
to adjudicate on his compensation claim against the Industrial Training
Authority was unreasonable. He also claimed just satisfaction under Article 50.
Held, unanimously
(1) that Article 6(1) of
the Convention is applicable in the present case and has been violated;
(2) that;
(a) the respondent State
is to pay the applicant, within three months, 3,000 Cypriot pounds in respect
of non-pecuniary damage;
(b) the respondent State
is to pay the applicant, within three months, 4,784.60 Cypriot pounds in
respect of costs and expenses together with any VAT that may be chargeable,
less 2,000 FF to be converted into Cypriot pounds at the rate of exchange
applicable on the date of delivery of the present judgment;
(c) that simple interest
at an annual rate of 8 per cent shall be payable from the expiry of the
above-mentioned three months until settlement;
(3) that the remainder
of the applicant's claims for just satisfaction be rejected.
*1187 1. Applicability
of Article 6(1); "civil" right as opposed to "public-law"
right.
H5 (a) The
Government maintained that the right asserted by the applicant could never
assume the characteristics of a "civil right" since it had its origin
in and was consequential on the outcome of his public-law recourse challenge to
a decision refusing him access to employment in the public sector, a topic
which lay outside the ambit of Article 6(1). [31]
H6 (b) While
the Court has held that disputes relating to inter alia the
recruitment of civil servants are as a general rule outside the scope of
Article 6(1), in the instant case the issue of recruitment to a public sector
post was not at the heart of the applicant's civil action: the applicant's aim
in instituting the civil action was not to secure his appointment to the post
of Head of Accounts with the Industrial Training Authority or to have the
interview procedure re-opened. In any event neither of those options was
possible on account of the fact that the post he had applied for had been
abolished by the time he took his civil action. The applicant brought his civil
action against the authorities solely to obtain financial reparation in respect
of an administrative act which he had successfully impugned in his recourse
action. Moreover, there are arguable grounds for concluding that the domestic
law recognised that a right to seek compensation accrued to the applicant once
he had secured the annulment of the Industrial Training Authority's decision.
[32]
H7 (c) The
public-law features of the civil action do not outweigh the predominantly
private-law characteristics of the proceedings, the outcome of which was
decisive as to whether the applicant was entitled to recover damages against
the defendant authority and, in the affirmative, the quantum. This was a purely
pecuniary right with its basis in domestic law. Therefore civil action
therefore involved a dispute over a "civil right" and Article 6(1) is
applicable in this case. [33]
2. Right to a hearing
within a reasonable time by a tribunal; "in the determination of his civil
rights and obligations": (Art. 6(1)).
H8 (a) The only
set of proceedings to be considered for the purposes of its assessment of the
reasonable-time requirement under Article 6(1) of the Convention is the civil
action initiated by the applicant on 13 April 1987 and terminated on 20 June
1995. The earlier recourse action is to be excluded from its assessment. The
total length of time taken by the impugned civil action was eight years, two
months and eight days. [37]
H9 (b) When
assessing the reasonableness of the length of the proceedings in the light of
the Court's established case-law, regard must be had to the fact that the
period in respect of which it has jurisdiction ratione temporis began to run
from 1 January 1989, when the declaration whereby Cyprus recognised the right
of individual petition for the purposes of Article 25 of the Convention took
effect. The Court notes, nevertheless, that it must take account of the state
of the case on that date in making its determination. [37]
H10 (c) Against
that background, the Court, with reference to its settled case law on this
matter, will assess the reasonableness of the length of the impugned
proceedings in the light of the particular circumstances of the case having regard
to its complexity, to the conduct of the applicant and to that of the
authorities including the *1188 domestic courts which
heard the case at first instance and on appeal. [38]
H11 (d) The
applicant's civil action essentially raised issues of liability and quantum of
damages in respect of which the domestic courts had the benefit of settled case
law. The length of the proceedings cannot therefore be explained in terms of
the complexity of the issues involved. Irrespective of the period of time taken
to dispose of the case at first instance, it is noteworthy that no steps were
taken by the registry of the domestic court to process the appeal proceedings
between 8 January 1991 and 15 March 1995. This is a particularly significant
period of inactivity. The Government has sought to explain this by reference to
the volume of work with which the domestic court had at the relevant period.
However, the excessive delay cannot be excused on this ground and is imputable
to the respondent State, it being recalled that Article 6(1) imposes on
Contracting States the duty to organise their judicial systems in such a way
that their courts can meet each of its requirements, including the obligation
to hear cases within a reasonable time. [39]
H12 (e) There
has accordingly been a violation of Article 6(1) in that the applicant's
"civil right" was not determined within a "reasonable
time". [40]
3. Just satisfaction:
damage; costs and expenses; default interest: (Art. 50)
H13 (a) Given
the fact that the proceedings concerned were not aimed at securing the
applicant's appointment to a post, he has not substantiated any causal link
between the breach established and the alleged pecuniary damage. It therefore
rejects his claim for pecuniary loss. [44]
H14 (b) Having
regard to the excessive length of the proceedings, which can reasonably be
considered to have been a source of anxiety and stress to the applicant in this
particular case, and deciding on an equitable basis, the Court awards the sum
of CYP 3,000 under this head. [47]
H15 (c) The
Court considers that the costs claimed in respect of the domestic proceedings
cannot be said to have been incurred to prevent the violation found by the
Court. It consequently dismisses this part of the claim. As regards the costs
and expenses claimed in respect of the proceedings before the Convention
institutions, the Court finds the amount claimed reasonable and grants it in
its entirety together with any value-added tax that may be chargeable, less the
sum of FRF 2,000 received by way of legal aid from the Council of Europe. [50]
H16 (d)
According to the information available to the Court, the statutory rate of
interest applicable in Cyprus at the date of adoption of the present judgment
is 8 per cent per annum. [51]
H17 The
following cases are referred to in the Court's judgment:
1. Duclos v. France
judgment of 17 December 1996 (not yet reported).
2. Neigel v. France
(2000) 30 E.H.R.R. 310.
3. Neves E Silva v.
Portugal (A/153): (1989) 13 E.H.R.R. 535.
4. Philis v. Greece (No.
2): (1998) 25 E.H.R.R. 417.
5. Proszak v. Poland
judgment of 16 December 1997 (not yet reported).
6. Robins v. United
Kingdom: (1998) 26 E.H.R.R. 527. *1189
H18 The
following additional cases are referred to in the opinion of the Commission:
7. Darnell v. United
Kingdom: (1994) 18 E.H.R.R. 205.
8. Editions Periscope v.
France (A/234-B): (1992) 14 E.H.R.R. 597.
9. Foti and Others v.
Italy (A/56): (1982) 5 E.H.R.R. 313.
10. Vernillo v. France
(A/198): (1991) 13 E.H.R.R. 880.
11. Vocaturo (A/206-C):
judgment of 24 May 1991 (not yet reported).
The Facts
I. The circumstances
of the case
8 The
applicant, an accountant by profession, was born in 1949 and lives in Nicosia.
A. The applicant's
cause of complaint
9 The
applicant, who was self-employed at the time, applied for the post of Head of
Accounts with the Industrial Training Authority, a public body created by law.
There was only one other candidate, a certain Mr I.
10 On 2
November 1981 the Industrial Training Authority appointed Mr I although the
applicant had better qualifications. The Authority had taken the view that the
applicant was in fact over qualified for the post in question and that the post
would not have offered him sufficient job satisfaction. The applicant filed a
recourse action before the Supreme Court against the decision to appoint Mr I.
11 Mr I
resigned in October 1982 and the post of Head of Accounts was abolished in
November 1983.
12 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 took the view
that, if it were to find that the applicant had been wrongfully denied the
post, he could be considered to have suffered as a result a detriment for the
purposes of Article 146(6) of the Constitution. [FN1] On 22 February 1986 the
Supreme Court declared the decision of the Industrial Training Authority null
and void on the ground that the latter had disregarded without justification the
applicant's higher qualifications.
FN1 See para. 21 below.
B. The proceedings
before the Nicosia District Court
13 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(6)
of the Constitution. [FN2] The Industrial Training Authority filed its
statement of defence on 8 October 1987.
FN2 See para. 21 below.
14 *1190 On 18 April
1988 the action was fixed by the District Court for mention on 16 May 1988. On
that date both parties requested the court to fix a date for hearing the case
and it was listed for 8 November 1988. On 8 November 1988 the court, of its own
motion, adjourned the hearing until 20 April 1989 when, again of its own
motion, it adjourned the hearing until 27 October 1989. On 26 October 1989 the
defendant applied for an adjournment. The applicant did not object and the
hearing was adjourned until 7 February 1990.
15 On 7
February 1990 the District Court began the examination of the case. However, as
the examination was not concluded on that date, the court adjourned the
proceedings until 7 March 1990, on which date the applicant's advocate
requested an adjournment. As the defendant did not object the court scheduled
the hearing for 5 April 1990. The examination of the case recommenced on that
date. However, since the examination was not concluded the court adjourned the
case until 10 May 1990, when it again adjourned it of its own motion until 5
June 1990. On 5 June 1990 the hearing of the case was completed and the court
reserved its judgment.
16 On 30
November 1990 the District Court delivered a judgment in which it awarded the
applicant the sum of 2,128 Cypriot pounds ("CYP").
C. The proceedings on
appeal before the Supreme Court
17 On 8 January
1991 the applicant appealed to the Supreme Court against the amount awarded.
The Industrial Training Authority filed a cross-appeal claiming that the action
should have been dismissed.
18 On 12 August
1994 the applicant complained in writing to the Registrar of the Supreme Court
about the delays in the proceedings.
19 On 15 March
1995 a hearing was held in the case. The parties agreed that the cross-appeal
should be heard first since, if it were allowed, this would dispose of all the
issues pending before the court.
20 On 20 June
1995 the Supreme Court considered that its decision of 22 February 1986
declaring the appointment of Mr I null and void [FN3] 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(6) of the Constitution. [FN4] The subsequent abolition of the post
could not give rise to a right to compensation. 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 aforesaid decision of the
Supreme Court. However, in deciding whether it should do so, the Authority was
entitled to take into account the subsequent abolition of the post, which was
lawful.
FN3 See para. 12 below.
FN4 See para. 21 below.
*1191 In the light
of the above, the Supreme Court allowed the cross- appeal and dismissed the
applicant's action.
II. Relevant domestic
law
21 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 recourse
the Court may, by its decision--
(a) confirm, either in
whole or in part, such decision or act or Commission; 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.
22 In its
judgment in the case of the Attorney General of The Republic v. Markoullides
and Another, [FN5] the Supreme Constitutional Court confirmed its earlier case
law that a person aggrieved by an administrative act must first secure its
annulment before being entitled to sue for damages under the provisions of
Article 146(6) of the Constitution. Furthermore, a plaintiff aggrieved by an
act declared void under the provisions of Article 146(4) must institute his
compensation proceedings in accordance with Article 146(6) and not pursuant to
the provisions of Article 172 of the Constitution.
FN5 (1966) 1 Cyprus Law
Reports p. 243.
In the same judgment the
Supreme Constitutional Court held that the amount of compensation to be awarded
to a public employee who was wrongly dismissed was to be assessed not on the
basis of the principles applicable in the law of master and servant but on the
basis of the principles applicable in the law of master and servant but on the *1192 basis of
what is "just and equitable" in the circumstances having regard to
the culpability of the administration and the claimant. The court stated:
Damages in a case, such
as the present one, have to be 'just and equitable damages', as laid down in
paragraph 6 of Article 146, and in interpreting such expression, we find great
assistance in the course adopted by the French Council of State in the case of
Deberles (7 April 1933). It was held there, in a case of similar nature to the
present one, that in assessing damages in relation to a decision which has been
declared to be void the respective importance of the culpability of the
Administration and of the claimant must be taken into account.
PROCEEDINGS BEFORE
THE COMMISSION
23 In his
application to the Commission on 10 July 1995 [FN6] Mr Mavronichis, relying on
Article 6(1) of the Convention, complained that his claim for compensation had
not been heard within a reasonable time. He also invoked Article 13 in support
of his complaint that he was not awarded compensation despite the fact that he
had obtained a judgment that his rights had been violated through not being
appointed to a public sector post which was subsequently abolished.
FN6 App. No. 28054/95.
24 The
Commission declared the application admissible on 26 June 1996 in respect of
the complaint under Article 6(1) of the Convention and dismissed the remainder
of the application. In its report of 15 January 1997, [FN7] it expressed the
unanimous opinion that there had been a violation of Article 6(1). The full
text of the Commission's opinion follows: [FN8]
Opinion
A. Complaint declared
admissible
C16 [FN9] The
Commission has declared admissible the applicant's complaint that his claim for
compensation was not heard within a reasonable time.
FN7 Made under Article
31.
FN8 Paragraph prefix
added by publisher.
FN9 The paragraph
numbering from here to para. C31 in bold is the original numbering of the Commission's
opinion. Then we revert to the numbering of the Court's judgment.--Ed.
B. Point at issue
C17 The only
point at issue is whether the length of the proceedings complained of exceeded
the "reasonable time" requirement referred to in Article 6(1) of the
Convention.
C. As regards Article
6(1) of the Convention
C18 The relevant
part of Article 6(1) of the Convention provides as follows: *1193
In the determination of
his civil rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by (a) ... tribunal ...
C19 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. [FN10] However, this was done in the context of
addressing the issue of whether the compensation proceedings [FN11] 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(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.
FN10 Recourse No.
478/81.
FN11 Action No. 3350/87.
C20 The
applicant submits that Article 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 was not right in arguing that
Article 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.
C21 The
Government submits that Article 6(1) of the Convention does not apply in the
proceedings in question. According to the case law, Article 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 [FN12] 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(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(1) of the Constitution null and void.
FN12 No. 15058/89, Dec.
10.4.91, D.R. 69 p. 306.
C22 The
Government further argues that a civil action for damages on the basis of
Article 172 of the Constitution, which determines the civil *1194 liability of
the State for wrongful acts and omissions, is to be distinguished from an
action for damages under Article 146(6) of the Constitution. Not every person
who has succeeded in a recourse under Article 146(1) of the Constitution is
considered to be an aggrieved person under Article 146(6). Moreover, the
quantum of damages to be awarded in an action under Article 146(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.
C23 The
Commission notes that the applicant was suing before a civil court a public
authority for damages under Article 146(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. [FN13] 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(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 Pˇriscope. [FN14] The differences between an action of damages under
Article 146(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(1) of the Convention.
FN13 See Neves E Silva
v. Portugal (A/153): (1989) 13 E.H.R.R. 535 para. 37.
FN14 Editions Periscope
v. France (A/234-B): (1992) 14 E.H.R.R. 597 para. 40.
C24 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. [FN15] The proceedings ended on 20
June 1995. Consequently, the proceedings complained of lasted eight years, two
months and eight days.
FN15 cf. Foti and
Others v. Italy (A/56): (1982) 5 E.H.R.R. 313 para. 53.
C25 The
Commission recalls that the reasonableness of proceedings must be assessed in
the light of the particular circumstances of the case *1195 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. [FN16]
FN16 See Vernillo v.
France (A/198): (1991) 13 E.H.R.R. 880 para. 30.
C26 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.
C27 The
Government argues 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.
C28 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 caseload of the Supreme Court does not
constitute such an explanation.
C29 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. [FN17]
FN17 cf. Vocaturo
(A/206-C) judgment of 24 May 1991 (not yet reported).
C30 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
C31 The
Commission concludes, unanimously, that there has been a violation of Article
6(1) of the Convention.
*1196 JUDGMENT
26 The
applicant maintained that the time taken by the domestic courts to adjudicate
on his compensation claim against the Industrial Training Authority was
unreasonable and in breach of Article 6(1) of the Convention which provides, to
the extent relevant:
In the determination of
his civil rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by (a) ... tribunal ...
27 The
Commission agreed with the applicant's arguments whereas the Government
contended that Article 6(1) was not applicable to the impugned proceedings. In
the alternative, it submitted that the facts of the case disclosed no breach of
that provision.
A. Applicability of
Article 6(1)
1. Arguments before
the Court
28 The
Government disputed the applicability of Article 6(1) to the compensation
proceedings instituted by the applicant. It emphasised that the applicant's
claim was inextricably linked to the public-law right to be appointed to a
permanent post in a public corporation which the applicant had asserted in the
earlier recourse action. The civil action could not be viewed in isolation from
the public-law action since the determination by the civil court of his
entitlement to compensation marked the final stage in the determination of his
public-law right. Given that it was clearly established in the Strasbourg
case-law that rights relating to access to employment in the public sector fell
outside the notion of "civil rights" it had to be concluded that the
subsequent and contingent civil proceedings were equally excluded from the
ambit of Article 6(1).
In support of this
argument the Government further maintained that it was erroneous to consider
the applicant's civil action under Article 146(6) of the Constitution on a par
with the civil action against the Republic provided for under Article 172 of
the Constitution. [FN18] In the first place, and unlike a plaintiff suing the
administration pursuant to Article 172, the applicant's civil action had been
contingent on securing a successful outcome to his recourse action. Secondly,
under Cypriot law the civil courts in the exercise of their jurisdiction under
Article 146(6) do not assess the quantum of damages by reference to the law of
master and servant. On the contrary; they are obliged to base themselves on
what is just and equitable in the circumstances and for this reason to have
regard to the culpability of the claimant and of the administrative body.
[FN19]
FN18 See para. 21 above.
FN19 See para. 22 above.
For these reasons it
could not be maintained th at the compensation proceedings had involved a
dispute over a "civil right".
29 *1197 The
applicant stressed that the proceedings before the Nicosia District Court and
on appeal before the Supreme Court were civil in nature. Both the first
instance proceedings and the appeal proceedings were governed by the ordinary
rules of civil procedure and the defendant, although a public authority, had
the same status throughout the proceedings as any private party who was being
sued in civil litigation. The aim of his action was to obtain civil relief in
the form of damages and the fact that the compensation proceedings were
premised on the prior annulment of the decision of the Industrial Training
Authority could not affect the conclusion that the outcome of those proceedings
was decisive of a private-law right.
For these reasons he
maintained that he could rely on Article 6(1).
30 The
Commission concluded that the applicant could rely on Article 6(1) before the
Convention institutions given the pecuniary nature of the claim which formed
the subject matter of the impugned proceedings. For the Commission this was the
decisive element irrespective of the fact that the compensation proceedings had
been contingent on the prior annulment by the applicant of an administrative
act or that the domestic courts have regard to public-law criteria when assessing
damages in actions taken pursuant to Article 146(6) of the Constitution.
2. The Court's
assessment
31 The court
notes that it has not been contested that there was a dispute [FN20] between
the applicant and the authorities over his right to compensation following the
annulment of the Industrial Training Authority's decision not to recruit him.
The central issue concerns the classification of that right for the purposes of
the applicability of Article 6(1) of the Convention. The Government maintains
in this respect that the civil right asserted by the applicant in the civil
action could never assume the characteristics of a "civil right"
since it had its origin in and was consequential on the outcome of his
public-law challenge to a decision refusing him access to employment in the
public sector, a topic which lay outside the ambit of Article 6(1). [FN21]
FN20 Contestation.
FN21 See para. 28 above.
32 While it is
true that the Court has held that disputes relating to inter alia the
recruitment of civil servants are as a general rule outside the scope of
Article 6(1), [FN22] it is to be observed that in the instant case the issue of
recruitment to a public sector post was not at the heart of the applicant's
civil action.
FN22 See, for example, Neigel
v. France (2000) 30 E.H.R.R. 310 para. 43.
It is to be noted in
this respect that the applicant's aim in instituting the civil action was not
to secure his appointment to the post of Head of Accounts with the Industrial
Training Authority or to have the *1198 interview procedure
re-opened. In any event neither of those options was possible on account of the
fact that the post he had applied for had been abolished by the time he took
his civil action. [FN23] The applicant brought his civil action against the authorities
solely to obtain financial reparation in respect of an administrative act which
he had successfully impugned in his recourse action. Moreover, having regard to
the clear terms of Article 146(6) of the Constitution [FN24] there are arguable
grounds for concluding that the domestic law of the respondent State recognised
that a right to seek compensation accrued to the applicant once he had secured
the annulment of the Industrial Training Authority's decision. [FN25]
FN23 See paras 11 and 20
above.
FN24 See para. 21 above.
FN25 See, mutatis
mutandis, Neves E Silva v. Portugal (A/153): (1989) 13 E.H.R.R. 535 para.
37.
33 As to the
public-law features of the civil action which have been highlighted by the
Government [FN26] it cannot be maintained that they outweigh the predominantly
private-law characteristics of the proceedings, the outcome of which was
decisive as to whether the applicant was entitled to recover damages against
the defendant authority and, in the affirmative, the quantum: in other words a
purely pecuniary right having, as noted above, [FN27] a basis in domestic law.
FN26 See para. 28 above.
FN27 See para. 32 above.
In conclusion, the civil
action involved a dispute over a "civil right" and Article 6(1) is
applicable in this case.
B. Compliance with
Article 6(1)
1. Arguments before
the Court
34 The
applicant maintained that the issues raised by his action were not complex.
Notwithstanding, the total length of time taken to have a final adjudication on
his claim for compensation was eight years, two months and eight days. He
criticised the fact that the Supreme Court had taken more than four years and
two months to fix a date for the hearing of his case even though his lawyer had
requested the court to proceed with his appeal. [FN28] He invited the Court to
conclude that the excessive length of the proceedings had to be imputed to the
dilatory approach to the proceedings displayed in particular by the judicial
authorities and to find that he was on that account a victim of a breach of
Article 6(1) of the Convention.
FN28 See para. 18 above.
35 The
Government disagreed with this analysis. It submitted that the length of the
first instance proceedings could not be considered unreasonable having regard
to the criteria relied on by the Court in this context. They pointed out that
the applicant had not objected to the defendant's request for an adjournment on
26 October 1989 and that he himself requested and was granted an adjournment on
7 March *1199 1990. [FN29] As to the length of the appeal
proceedings it drew attention to the fact that the Supreme Court has had to
cope in recent years with a substantial increase in the number of cases before
it and that this factor could not be overlooked when assessing the
reasonableness of the time taken for it to deliver its final judgment.
FN29 See paras 14 and 15
above.
For these reasons it
maintained that there had been no breach of Article 6(1).
36 The
Commission noted that the proceedings at issue began on 13 April 1987 and ended
on 20 June 1995--a total period of eight years, two months and eight days.
Although the recognition of the right of individual petition by the respondent
State took effect on 1 January 1989 it considered that the state of the
proceedings on that date had to be taken into account when assessing the
reasonableness of their length.
Concentrating on the
length of the proceedings before the Supreme Court, the Commission noted in
particular that the case lay dormant for a period of more than four years and
two months. In the Commission's opinion the delay in the processing of the
appeal was imputable to the State and could not be justified by reference to
the workload of the Supreme Court. The Commission concluded therefore that the
length of the proceedings was excessive and failed to meet the relevant
requirement of Article 6(1).
2. The Court's
assessment
37 The Court
observes that the only set of proceedings to be considered for the purposes of
its assessment of the reasonable-time requirement under Article 6(1) of the
Convention is the civil action initiated by the applicant on 13 April 1987
[FN30] and terminated on 20 June 1995. [FN31] The earlier recourse action is to
be excluded from its assessment. Notwithstanding its relevance to the issue of
the applicability of Article 6(1) [FN32] the length of that action never formed
the subject matter of the applicant's complaint to the Convention institutions.
[FN33] On that understanding, which has not been contested, the total length of
time taken by the impugned civil action was eight years, two months and eight
days.
FN30 See para. 13 above.
FN31 See para. 20 above.
FN32 See para. 32 above.
FN33 See para. 23 above.
It must also be observed
that when assessing the reasonableness of the length of the proceedings in the light
of the Court's established case-law, [FN34] regard must be had to the fact that
the period in respect of which it has jurisdiction ratione temporis began to run
from 1 January 1989, when the declaration whereby Cyprus recognised the right
of individual petition for the purposes of Article 25 of the Convention *1200 took effect.
The Court, like the Commission, notes nevertheless that it must take account of
the state of the case on that date in making its determination. [FN35]
FN34 See para. 38 below.
FN35 See, most recently,
Proszak v. Poland judgment of 16 December 1997 (not yet reported), para. 31.
38 Against that
background, the Court, with reference to its settled case-law on this matter,
will assess the reasonableness of the length of the impugned proceedings in the
light of the particular circumstances of the case having regard to its
complexity, to the conduct of the applicant and to that of the authorities
including the domestic courts which heard the case at first instance and on
appeal. [FN36]
FN36 See, among other
authorities, "Proszak v. Poland op. cit. para. 32; Robins v. United
Kingdom (1998) 26 E.H.R.R. 527, para. 33; and Duclos v. France judgment of 17
December 1996, (not yet reported), para. 55.
39 The Court
considers that the applicant's case essentially raised issues of liability and
quantum of damages in respect of which the domestic courts had the benefit of
settled case-law. [FN37] The length of the proceedings cannot therefore be
explained in terms of the complexity of the issues involved. It notes in this
regard that the Supreme Court was able to decide the case relatively quickly
after it was set down for hearing on 15 March 1995.
FN37 See para. 22 above.
Irrespective of the
period of time taken to dispose of the case at first instance, the Court
observes in particular that no steps were taken by the registry of the Supreme
Court to process the appeal proceedings between 8 January 1991 and 15 March
1995. [FN38] It is to be noted, for example, that no procedural measures were taken
to list the case for hearing or to deal with interlocutory motions during that
time. This must be considered a particularly significant period of inactivity.
The Government has sought to explain this with reference to the volume of work
with which the Supreme Court had to contend at the relevant period. However,
the excessive delay cannot be excused on this ground and is imputable to the
respondent State, it being recalled that Article 6(1) imposes on Contracting
States the duty to organise their judicial systems in such a way that their
courts can meet each of its requirements, including the obligation to hear
cases within a reasonable time. [FN39]
FN38 See paras 17-19
above.
FN39 See Philis v.
Greece (No. 2) (1998) 25 E.H.R.R. 417, para. 40.
40 There has
accordingly been a violation of Article 6(1) in that the applicant's
"civil right" was not determined within a "reasonable
time".
II. Application of
Article 50 of the Convention
41 The
applicant claimed just satisfaction under Article 50 of the Convention which
provides as follows:
If the Court finds that
a decision or a measure taken by a legal authority or *1201 any other
authority of a High Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and if the internal law
of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party.
A. Pecuniary damage
42 The
applicant sought an award of 25,000 Cypriot pounds (CYP) to compensate him for
the financial loss he suffered on account of the unreasonable length of the
proceedings at issue. He explained that he had continued to act in a self-
employed capacity in the expectation that there would be an adjudication on his
claim for damages against the authorities within a reasonable period of time,
possibly before the end of 1989. By that stage he should have known of the
outcome of his civil action. The amount sought represented the difference
between what he would have earned in the years 1990-1992 had he taken up
salaried employment and what he did in fact earn over that period as a self-
employed person while awaiting a decision on his claim against the defendant
authority. In the alternative, he requested the Court in its discretion to
award part of the amount claimed.
43 The Delegate
of the Commission did not offer any comments on the applicant's claim. The
Government for its part submitted that the applicant had not suffered any
pecuniary damage and recalled in this respect that the Supreme Court had
finally decided that the applicant was not entitled to compensation.
44 The Court
considers that, given the fact that the proceedings concerned were not aimed at
securing the applicant's appointment to a post, he has not substantiated any
causal link between the breach established and the alleged pecuniary damage. It
therefore rejects his claim.
B. Non-pecuniary
damage
45 The
applicant maintained that the unreasonable length of the proceedings took a
heavy toll on his physical and mental health. He adduced a medical report in
support of his claim that the protracted litigation was a cause of stress,
anxiety and depression. He claimed CYP 10,000 in this respect.
46 As with the
previous head of damage the Delegate of the Commission did not offer any
comments on this claim. The Government requested the Court to decide and
declare that judgment in the applicant's favour would in itself constitute just
satisfaction for any non-pecuniary damage suffered.
47 Having
regard to the excessive length of the proceedings, which can reasonably be
considered to have been a source of anxiety and stress to the applicant in this
particular case, and deciding on an equitable basis, the Court awards the sum
of CYP 3,000 under this head.
*1202 C. Costs
and expenses
48 The
applicant requested the Court to award him a total amount of CYP 5,292.10, of
which CYP 507.50 were incurred in the domestic proceedings and CYP 4,784.60 in
advancing his case under Article 6 before the Convention institutions.
49 The Delegate
did not comment on the amount claimed. The Government stated that if the Court
were to find a breach of Article 6(1) of the Convention it was prepared to pay
the applicant's costs and expenses provided that the amounts claimed were shown
to have been actually and necessarily incurred and were reasonable in the
circumstances.
50 The Court
considers that the costs claimed in respect of the domestic proceedings cannot
be said to have been incurred to prevent the violation found by the Court. It
consequently dismisses this part of the claim. As regards the costs and
expenses claimed in respect of the proceedings before the Convention
institutions, the Court finds the amount claimed reasonable and grants it in
its entirety together with any value added tax that may be chargeable, less the
sum of 2,000 FF received by way of legal aid from the Council of Europe.
D. Default interest
51 According to
the information available to the Court, the statutory rate of interest
applicable in Cyprus at the date of adoption of the present judgment is 8 per
cent per annum.
52 Order
For these reasons, THE
COURT unanimously
1. Holds that Article
6(1) of the Convention is applicable in the present case and has been violated;
2. Holds
(a) that the respondent
State is to pay the applicant, within three months, 3,000 (three thousand)
Cypriot pounds in respect of non-pecuniary damage;
(b) that the respondent
State is to pay the applicant, within three months, 4,784 (four thousand seven
hundred and eighty-four) Cypriot pounds and 60 (sixty) cents in respect of
costs and expenses together with any value-added tax that may be chargeable,
less 2,000 (two thousand) French francs to be converted into Cypriot pounds at
the rate of exchange applicable on the date of delivery of the present
judgment;
(c) that simple interest
at an annual rate of 8 per cent shall be payable from the expiry of the
above-mentioned three months until settlement;
3. Rejects the
remainder of the applicant's claims for just satisfaction.
-----
(1996) 22 E.H.R.R.
CD120
Mavronichis v. Cyprus
Before the European
Commission of Human Rights
June 1996
*120 Mavronichis
v. Cyprus
App. No. 28054/95
Before the European Commission
of Human Rights
Eur Comm HR
(Action for damages
following a finding that Applicant's rights had been
violated; length of
proceedings)
June 1996
The Facts
On 2 November 1981 a
public corporation, the Industrial Training Authority, appointed and employed
in the position of Head of Accounts a certain Mr I instead of the applicant,
the only other candidate, 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).
I resigned in October
1982 and the post of Head of Accounts was abolished in November 1983.
On 6 June 1984 the
Supreme Court, ruling on a preliminary objection by the defendants, 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 Arti[cle 146(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.
On 13 April 1987, the
applicant filed before the District Court of Nicosia a civil action against the
Industrial Training Authority claiming damages (Action No. 3350/87).
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.
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.
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(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.
The Law
1. The applicant
complains under Article 6(1) of the Conventionabout the length of the
proceedings, which was so unreasonable as to render the trial unfair.
The Commission notes
that, although the applicant refers to a violation of the right to a fair
trial, he does so in order to stress the seriousness of the delays in the
proceedings. His complaint concerns, therefore, exclusively the right to a
hearing within a reasonable time in the determination of his civil rights and
obligations which is guaranteed in Article 6(1) of the Convention and must be
examined under this angle.
The Government submits
that Article 6(1) does not apply in the proceedings in question. The 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(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(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(1) of the Constitution null and void.
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(6) of the
Constitution. Not every person who has succeeded in a recourse under Article
146(1) of the Constitution is considered to be an aggrieved person under
Article 146(6). Moreover, the quantum of damages to be awarded in an action
under Article 146(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.
As regards the substance
of the complaint, the Government submits 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 length of the proceedings before the Supreme
Court was also reasonable given the recent increase in the volume of litigation
before that court.
The applicant submits,
as regards the applicability of Article 6(1) of the Convention, that his case
is analogous to Darnell v. United Kingdom. If he had been appointed in the
post, the terms of his employment would have been governed by a contract which he
would have signed with the Industrial Training Authority. In any event, the
proceedings for compensation are separate from the proceedings by which he
sought to have his right to be employed in the public sector determined. They
were ordinary civil proceedings and the courts usually applied the rules
concerning master and servant. The Supreme Court, when hearing his appeal,
exercised its normal appellate jurisdiction.
As regards the substance
of the complaint, 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 should not be blamed for not objecting 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. There was no
justification for the delays before the Supreme Court.
In the light of all the
above and the criteria established in the case law of the organs of the
Convention concerning "reasonable time" (complexity of the case,
conduct of the parties and the conduct of the authorities dealing with the
case), the Commission considers that the complaint concerning the length of the
proceedings raises serious issues of fact and law, including the question of
the applicability of Article 6(1) of the Convention which cannot be resolved at
the present stage of the examination of the application, but calls for an
examination of the merits.
2. The applicant
complains under Article 13 of the Convention of the absence of an effective
remedy in that he was not awarded compensation despite a ruling by the Supreme
Court that his rights had been violated when he had not been appointed to a
public sector post which was subsequently abolished. He also claims that, in these
circumstances, it cannot be said that he had a fair trial.
The Commission recalls
that, in accordance with its case law, it is not competent to deal with
complaints alleging that errors of law or fact have been committed by domestic
courts, except where it considers that such errors might have involved a
possible violation of any of the rights or freedoms set out in the Convention
(No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73,
Collection 43 p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).
Moreover, the Convention
does not guarantee a right to be appointed to a public sector post and, as a
result, Article 13 of the Convention does not apply in the circumstances of the
case.
It follows that this
part of the application must be declared inadmissible as being manifestly
ill-founded within the meaning of Article 27(2) of the Convention.
Held, First Chamber,
unanimously, complaint concerning the length of the proceedings admissible;
remainder of the application inadmissible.