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FIRST
SECTION
CASE OF CHARALAMBIDES v. CYPRUS
(Application
no. 37885/04)
JUDGMENT
STRASBOURG
15
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Charalambides v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37885/04) against the
Republic of Cyprus lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Cypriot national, Mr Michael
Charalambides (“the applicant”), on 12 October 2004.
- The
applicant was represented by Mr A. Eftychiou, a lawyer practising in
Nicosia, Cyprus. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
- On
16 January 2006 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 in Moutoullas, Cyprus and lives in
Nicosia.
- On
12 March 1996 the police received complaints to the effect that the
applicant had been involved in fraudulent behaviour in February 1994.
The police then commenced their investigation and on an unspecified
date they obtained a written statement from the applicant. On 23
September 1996 the results of the investigation were submitted to the
Attorney-General to decide whether to prosecute the applicant. On
3 November 1996 he decided not to proceed with prosecution.
Following the receipt of further complaints against the applicant’s
conduct, the investigation file was sent for a second time to the
Attorney-General. On 15 May 1998 the Attorney-General issued new
instructions to the police to commence a new cycle of investigations.
On 16 June 1998 the applicant and his wife were charged with several
counts of forgery and obtaining funds through misrepresentation. On
18 September 1998 criminal proceedings were brought against them
before the District Court of Nicosia.
- On
14 October 1998 the applicant and his wife pleaded not guilty, and
the case was set for hearing on 20 November 1998. On that date the
case was adjourned, on the applicant’s request, for 13 January
1999. On the basis of the applicant’s request it was further
adjourned for 19 February 1999 and then for 8 March 1999. The case
was adjourned on two subsequent occasions. On 19 March 1999 the
applicant changed his lawyer and requested an adjournment so that his
new lawyer could prepare his case. The hearing was set for 25 May
1999. A further adjournment was requested by the applicant for the
same reasons and the case was set for 30 June 1999. The hearing was
then adjourned twice due to the change of judge and on the request by
the prosecution. A further adjournment request was made by the
applicant on 11 November 1999 and the case was set for hearing on
23 November 1999. On that date the applicant’s new lawyer
had to withdraw from the proceedings and the applicant requested a
further adjournment to appoint a new lawyer.
- The
case was thus set for directions on 29 November 1999. On that date a
new lawyer appeared on behalf of the applicant who requested an
adjournment of the case so that he could prepare the applicant’s
defence. The case was adjourned for 6 December 1999 when the
applicant requested an adjournment. On 14 December 1999 the applicant
appeared without a lawyer and requested an adjournment until
17 December 1999 so that he could find another lawyer. On 17
December 1999 the applicant’s new lawyer requested another
adjournment so that he could file a request for the applicant’s
discharge due to the unreasonable delay in the proceedings. On 23
December 1999 the court heard the parties’ addresses in this
respect. On 21 January 2000 the court issued an interim decision by
which it rejected the applicant’s request for discharge.
- The
hearing of the case eventually commenced on 28 February 2000 but was
subsequently adjourned on several occasions. On 29 November 2000 the
applicant argued that his written statement should not be admitted in
trial and the issue was examined in a trial within trial. The court
issued its interim decision in this respect on 4 April 2001 when the
main trial was resumed. Following a number of adjournments the
hearing was completed on 9 July 2002. Judgment was delivered on 6
November 2002, finding the applicant guilty of certain of the
charges brought against him and on 11 November 2002 he was
sentenced to fifteen months’ imprisonment. The court accepted
that there had been unjustified delay in the proceedings but noted
that it was not of such an exceptional nature as to require the
applicant’s discharge. The length of the proceedings was taken
as a mitigating factor in the imposition of the sentence. In this
regard it was noted that given the seriousness of the offences
committed by the applicant a sentence of imprisonment was required.
From a maximum sentence of three years’ imprisonment a sentence
of fifteen months’ imprisonment was imposed. Counsel for the
applicant accepted in his plea for mitigation that the delay was not
such as to require the applicant’s discharge.
- On
an unspecified date the applicant lodged an appeal against his
conviction and sentence, and contended, inter alia, that there
had been a violation of his right to determination of the criminal
charges brought against him within a reasonable time.
- The
Supreme Court delivered its judgment on 1 June 2004, by which it
dismissed the applicant’s appeal. The court held in its
majority judgment that there had been no violation of his right to a
fair trial within reasonable time. The period to be taken into
account had started on 16 June 1998 when the applicant was charged
and finished when his criminal liability had been determined, on 6
November 2002. It had thus lasted for four years and five months.
Having established that the case was of a complex nature, the Supreme
Court noted that a significant part of the delay was to be attributed
to the applicant, who had only managed to find a representative after
a period of fourteen months had elapsed, and had requested at least
eleven adjournments of the hearing of the case; there had been no
period of inactivity.
- A
dissenting judge found that the applicant’s right to a fair
trial within reasonable time had been violated and noted that, in his
view, the applicant should have been discharged.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
applicant argued that the relevant period started when the complaints
against him had been lodged with the police and not when he had been
formally charged.
- He
further complained that the protracted length of the proceedings
constituted such prejudice that rendered the proceedings unfair.
Hence, the breach of his right to a fair trial entailed that he
should have been discharged or that the imprisonment sentence imposed
ought to have been suspended.
- The
Government contested the applicant’s arguments. They argued
that the applicant had no victim status to complain about the length
of the proceedings, given that any delay had been taken into account
as a mitigating factor in the imposition of his sentence. They
further endorsed the Supreme Court’s finding of no violation of
the applicant’s right to a fair trial within a reasonable time,
for the reasons stated in that court’s decision of 1 June
2004.
A. Admissibility
- The
Court observes that the applicant’s complaint about the
fairness of the proceedings was twofold: firstly, he claimed that the
length of the proceedings had denied him a fair trial within a
reasonable time, and, secondly he asserted that the length of the
proceedings had prejudiced their fairness in such a manner that the
only equitable remedy was an order for his discharge or suspension of
the imposed imprisonment sentence.
- With
regard to the latter allegation, the Court observes that where there
has been such prejudice caused to an applicant by the delay in
proceedings, that it interferes with his or her right to a fair trial
in some manner that cannot otherwise be remedied, then a stay of
proceedings could be appropriate. However, Article 6 § 1 of the
Convention does not require that in excessively lengthy criminal
proceedings an accused should be discharged or that the proceedings
should be stayed (see Menelaou v. Cyprus (dec.), no. 32071/04,
2 June 2008). The domestic
courts would be required to explore in each case whether other
possible remedies, like the way in which the evidence is approached
or the mitigation of any sentence imposed, would be appropriate.
- Turning
to the facts of the present case, the Court observes that the
applicant merely made a vague allegation that the length of the
proceedings had prejudiced their fairness, without pointing to any
specific shortcomings in the proceedings. Moreover, the Court notes
that the applicant’s counsel admitted in his plea of mitigation
that the excessive delay in the proceedings did not constitute such
prejudice as to require a stay of the proceedings. Having regard to
the conduct of the proceedings as a whole, the Court finds that the
decision not to discharge the applicant or suspend his sentence of
imprisonment did not impair the fairness of the proceedings.
- Accordingly,
the Court considers that this complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
- As
to the complaint concerning the length of the proceedings, the Court
notes that the Government argued that the applicant had lost his
victim status as any delay in the proceedings had been taken into
consideration as a mitigating factor in the imposition of his
sentence. In this respect the Court recalls that the mitigation of a
sentence on the account of the excessive length of the proceedings
does not, in principle, deprive the individual concerned of his
status as victim within the meaning of Article 34 of the Convention.
This general rule is subject to an exception when the national
authorities have acknowledged the failure to observe the reasonable
time requirement in a sufficiently clear way and have afforded
redress by reducing the sentence imposed in an express and measurable
manner (see, inter alia, Beck v. Norway, no. 26390/95,
§ 27, 26 June 2001).
- Applying
these principles in the present case, the Court notes that the
Supreme Court in its judgment of 1 June 2004 held that there had been
no violation of the applicant’s rights to a fair trial within
reasonable time. In such circumstances the Court finds it clear that
the applicant may still claim to be a victim within the meaning of
Article 34 of the Convention. Furthermore, the Court finds that the
complaint concerning the protracted length of the proceedings is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It also finds that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- As
regards the relevant period to be taken into consideration, the Court
does not accept the applicant’s argument that the relevant
period commenced on 12 March 1996, when the police commenced its
first investigation, given the decision of the Attorney-General not
to prosecute the applicant at that stage. The applicant was only
charged following the conduct of new investigation by the police
which had been pursued on the basis of new instructions by the
Attorney-General. The applicant has failed to show that he had been
continuously affected by the conduct of the two cycles of
investigation. Accordingly, the Court considers that the relevant
period started running from 16 June 1998, when the applicant was
charged, and ended with the delivery of the judgment on appeal on
1 June 2004. The proceedings have thus lasted approximately six
years for two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court takes note of the fact that certain delay in the proceedings
could be attributed to the applicant given that it took him
approximately 14 months to appoint a lawyer that would
ultimately pursue his defence. However, notwithstanding the
applicant’s conduct, the domestic authorities were required to
organise the trial efficiently and ensure that the Convention
guarantees were fully respected in the proceedings. Having regard to
the circumstances of the instant case and to its case-law on the
subject, the Court considers that the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 98,000 Cyprus pounds (CYP) in respect of pecuniary
damage representing an alleged loss of income due to the proceedings.
He further claimed CYP 80,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed CYP 7,521 for the costs and expenses incurred
before the domestic courts and CYP 3,450 for those incurred before
the Court.
- The
Government contested these claims.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,850 covering costs
under all heads of the applicant’s claim plus any tax that may
be chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR two
thousand (2,000 euros) in respect of non-pecuniary damage and EUR one
thousand eight hundred and fifty (1,850 euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
