(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.