Παρασκευή, 28 Ιανουαρίου 2011

Skoutaris: Building Transitional Justice Mechanisms Without a Peace Settlement : a Critical Appraisal of Recent Case Law of the Strasbourg Court on the Cyprus Issue

Ο Νίκος Σκουταρης έχει δημοσιευσει το άρθρο του με τίτλο:

"Building Transitional Justice Mechanisms Without a Peace Settlement : a Critical Appraisal of Recent Case Law of the Strasbourg Court on the Cyprus Issue"

στην επιθεώρηση 'European Law Review' (2010), Vol. 35, Issue 05, pp. 720-733.

Η περίληψη είναι πιο κάτω:

On March 1, 2010, the Strasbourg Court delivered its decision in Demopoulos v Turkey. With this judgment, the Court allowed the building of what could be considered to be a transitional justice mechanism for the settlement of the property aspect of the Cyprus issue. Thus, it influenced the fragile balance in the current negotiations for the reunification of Cyprus. This article analyses this landmark judgment by tracing the reasoning of the Court to earlier case law on issues arising from the Cyprus dispute, discussing the discrepancies between the ECtHR judgment in Demopoulos and the ECJ decision in Apostolides v Orams, and referring to the political ramifications of the decision.


Πέμπτη, 27 Ιανουαρίου 2011

Elawa v. Turkey - Παραβίαση ανθρωπίνων δικαιωμάτων στην "ΤΔΒΚ"





SECOND SECTION






CASE OF ELAWA v. TURKEY

(Application no. 36772/02)








JUDGMENT



STRASBOURG

25 January 2011



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 Elawa v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
         Françoise Tulkens, President,
         Ireneu Cabral Barreto,
         Danutė Jočienė,
         Dragoljub Popović,
         Işıl Karakaş,
         Kristina Pardalos,
         Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 4 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 36772/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Egyptian national, Mr Mohamed Elawa (“the applicant”), on 19 August 2002.
2.  The applicant was represented by Mr Barış Mamalı and Mr Yusuf Tekinay, lawyers practising in the “Turkish Republic of Northern Cyprus” (the “TRNC”). The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicant alleged, in particular, that the criminal proceedings brought against him in the TRNC had been in breach of the requirement of fairness contained in Article 6 of the Convention and that he had not been given the assistance of a lawyer whilst he had been detained in police custody.
4.  On 23 March 2009 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1977 and lives in Egypt.
6.  The applicant moved from Egypt to the TRNC on 14 February 2001 to study law at a university. He did not speak Turkish. With the help of another individual, Mr Yassir Faathelrahman Amer, the applicant rented a flat and started living in the TRNC. He also started working for Mr Amer in the latter's music business.
7.  In the evening of 29 May 2001 a businessman was found dead in his office in the TRNC. His throat had been slit and he had also sustained a number of injuries caused by blows to his head. On 30 May 2001 the applicant was arrested on suspicion of having killed the businessman and was placed in police custody, where he remained until he was charged with the offence of homicide and transferred to a prison on 22 June 2001. Mr Amer was also arrested in respect of the same offence and kept in police custody.
8.  According to the documents submitted by the parties, in the course of his detention in police custody the applicant was questioned by police officers on 3 June, 9 June and 22 June 2001 in the presence of an interpreter. On 22 June 2001 he was charged with the offence of homicide and his pre-trial detention in prison was ordered by a judge. According to three handwritten statements, no lawyer was present on the three occasions that the applicant was questioned by the police.
9.  The applicant claims that while in police custody he asked to be represented by a lawyer but police officers laughed at him and told him that “lawyers charge 50,000 US dollars, go and find 50,000 dollars”. Moreover, his requests to contact the Egyptian Embassy in Ankara were met with the angry refusals of a police chief.
10.  According to the applicant, during his questioning in police custody he had been ill-treated by both police officers and the interpreter. He also claims that he had subsequently been encouraged by police officers – through being given privileges such as adequate food, clothing and sanitary facilities – to make statements implicating his co-defendant Mr Amer in the killing. Approximately twenty statements had been prepared by the police and he had been forced to sign them to avoid further ill-treatment. As he did not speak Turkish, he had not been able to take cognisance of their contents. In any event, the statements had been handwritten and illegible. Two of these statements had subsequently been dated “3 June 2001” and “9 June 2001” (see paragraph 8 above) and used against him at trial.
11.  During a remand hearing held on 11 June 2001 a lawyer was present in the courtroom. According to the applicant, however, he had not been advised about the appointment of that lawyer and, in any event, he had not authorised that lawyer's representation of him. During remand hearings held on 31 May, 3 June and 19 June 2001 no lawyer was present. The applicant claims that during one of the remand hearings he had unsuccessfully repeated his request to be represented by a lawyer.
12.  Subsequently, both the applicant and Mr Amer were tried by the Lefkoşa Assize Court (“the trial court”). In the course of the trial the applicant denied the accuracy of the statements signed by him in police custody. On 4 March 2002 the applicant and Mr Amer were found guilty of the offence of manslaughter and thirteen other charges. They were sentenced to life imprisonment[1]. In convicting the applicant the trial court had regard, amongst other things, to the three statements made by the applicant to the police in June 2001.
13.  The applicant appealed against the judgment on 22 March 2002. In the course of the hearings held by the Court of Appeal, the applicant's legal representative argued that during the trial there had been a number of shortcomings and inconsistencies which had not been eliminated by the trial court and which had meant that the applicant's conviction was unsafe. The legal representative's arguments related, notably, to statements made by a number of police officers during the trial, according to which at 6.00 a.m. on 3 June 2001 the applicant had been taken to a number of locations by police officers in order to search for the objects used in the killing. Nevertheless, according to the handwritten statements referred to above (see paragraph 8), the applicant had supposedly been questioned between 6.15 a.m. and 7.10 a.m. on the same day in a police station some distance away. The legal representative pointed out that his client could not have been in two different places at the same time. He also argued the applicant had not known the dates on which he had been questioned, and that on 5 June 2001 the police officers had simply asked the applicant to sign a number of pre-prepared statements.
14.  The Court of Appeal adjourned the initial hearing four times and did not begin the examination of the case until 2005. It upheld the applicant's conviction on 2 March 2006.
15.  The applicant completed the service of his prison sentence on 19 June 2009 and was subsequently deported to Egypt.
16.  According to the applicant, the prison where he had served his sentence had been overcrowded, sanitary conditions had been inadequate and the quality of the food had been poor. On a number of occasions he had been detained in solitary confinement and had been beaten up by members of the security forces.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
17.  The applicant complained that the ill-treatment to which he had been subjected in police custody in 2001 and the conditions of his detention in prison had been in violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
18.  The Government contested those arguments.
19.  As regards the alleged ill-treatment of the applicant in police custody in 2001, the Court observes, firstly, that the applicant did not bring these complaints to the attention of the national authorities. Even assuming that there were no domestic remedies to be exhausted in this respect, the Court observes that he did not apply to the Court within six-months from the date of his transfer from police custody to pre-trial detention on 22 June 2001 (see paragraph 8 above). He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention in respect of this complaint. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
20.  Concerning the applicant's complaints relating to the conditions of his detention, the Court reiterates that, to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). In the present case there is no indication that the treatment complained of reached the threshold of severity bringing the matter within the scope of Article 3 of the Convention (see Panayiotis Kyriacou Tsiakkourmas v. Turkey (dec.), no. 13320/02, 20 May 2008, and Amer, cited in the text, §§ 55-56).
21.  It follows that this complaint should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
22.  Under Article 5 § 2 of the Convention the applicant maintained that, following his arrest by the police on 30 May 2001, he had not been promptly informed of the reasons for his arrest. Article 5 § 2 of the Convention provides as follows:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
23.  The Government contested that argument.
24.  The Court observes that the applicant's police custody ended on 22 June 2001 (see paragraph 8 above) when he was brought before a judge and charged. However, he did not lodge his application with the Court until 14 August 2002. It does not appear that he subsequently tried to use any domestic remedy in respect of this complaint which could have stopped the running of the six-month period. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention in respect of this complaint. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention (see Amer, cited in the text, § 59 and the cases cited therein).
III.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
25.  The applicant complained that the trial had not been conducted in a fair and impartial manner and that his defence arguments had not been taken into account by the trial court. He further complained that the appeal proceedings had lasted for an inordinately long time. He also complained that the interpreter he had been provided with by the police had not been impartial and that the interpreter who had assisted him in the subsequent trial had not been adequately qualified. Finally, the applicant complained that he had not been provided with legal assistance at the initial stages of the criminal proceedings. In respect of these complaints the applicant relied on Articles 6 § 1 and 6 § 3 of the Convention, which provide, in so far as relevant, as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law...
3.  Everyone charged with a criminal offence has the following minimum rights: ...
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
...
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
26.  The Government contested those arguments.
A.  Admissibility
27.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
1.  Complaint concerning the length of the criminal proceedings
28.  The applicant complained that the length of the criminal proceedings against him, in particular the appeal proceedings, had been in breach of the reasonable time requirement of Article 6 § 1 of the Convention.
29.  In the opinion of the Government, the proceedings had been complex and had thus required detailed examinations to be undertaken by the Court of Appeal. They also argued that the delays in the appeal proceedings had not been attributable to the Government but rather to the applicant and his co-accused.
30.  The Court observes that the criminal proceedings against the applicant began on 30 May 2001 when he was taken to the police station, and were completed on 2 March 2006 when the Court of Appeal pronounced its decision. They thus lasted for just over four years and nine months at two levels of jurisdiction.
31.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case. Particular regard must be had to the complexity of the case and 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).
32.  Although, as pointed out above, the proceedings were completed in less than five years, the Court cannot overlook the fact that a lengthy period of four years elapsed between 22 March 2002, when the appeal was lodged by the applicant, and 2 March 2006, when the Court of Appeal rendered its decision.
33.  The Court has already considered the length of the same criminal and appeal proceedings in its judgment in the above-mentioned case of Amer, introduced by the applicant's co-defendant, and found that they had been in breach of the reasonable time requirement of Article 6 § 1 of the Convention (Amer, cited in the text, § 73). It has examined the present application and the parties' submissions. It considers that the Government have not advanced any arguments requiring the Court to depart from its findings in the Amer judgment.
34.  In light of the foregoing, the Court finds 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 of the Convention.
2.  Complaint concerning the lack of legal assistance
35.  The applicant complained that he had not been provided with legal assistance at the initial stages of the criminal proceedings.
36.  The Government submitted that during his time in police custody between 30 May and 22 June 2001 the applicant had been represented by a lawyer. That lawyer had attended the remand hearing held on 11 June 2001 and had visited the applicant in police custody on 14 June 2001.
37.  The Government pointed out that in the TRNC it was the constitutional right of everyone charged with an offence to be given free legal assistance. It was also standard procedure to assign free legal assistance in serious cases, such as a murder or a manslaughter trial, even if the person charged did not himself appoint a lawyer to represent him. Nevertheless, the applicant had not asked the police to appoint a lawyer for him whilst he was being questioned by them.
38.  The Court reiterates that even if the primary purpose of Article 6 of the Convention as far as criminal proceedings are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 of the Convention – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions. The right set out in paragraph 3 (c) of Article 6 of the Convention is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz v. Turkey [GC], no. 36391/02, §§ 50 and 55, 27 November 2008; see also paragraphs 51-54 of the same judgment for a review of relevant principles applicable to the right to legal assistance).
39.  The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevent a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II). In this connection, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see Yunus Aktaş and Others v. Turkey, no. 24744/03, § 43, 20 October 2009). Furthermore, a waiver of the right of entitlement to the guarantees of a fair trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see, Salduz, cited above, § 59).
40.  In the present case serious accusations were levelled against the applicant when he was questioned at the police station. Indeed, the statements of 3, 9 and 22 June 2001 were to become crucial for his case and to be relied on by the trial court in convicting him, notwithstanding the fact that both during the trial and the appeal proceedings the applicant strenuously denied the accuracy of those statements (see paragraphs 12 and 13 above).
41.  Nevertheless, despite their importance for the domestic proceedings, none of the statements make any mention of the applicant renouncing his constitutional right to legal assistance whilst he was being questioned, as claimed by the Government. Given that the right to legal assistance is a constitutional right in the TRNC and that the normal practice is to assign free legal assistance in serious cases – such as a murder or a manslaughter trial – even if the person charged does not himself appoint a lawyer to represent him (see paragraph 37 above), the Court considers the absence of any entry in the police statements concerning the issue of legal assistance to be inexplicable.
42.  The Court would also point out that the applicant is not a native speaker of the Turkish language. In its opinion, even though he was assisted by an interpreter – whose independence and impartiality is questioned by the applicant (see paragraph 10 above) – during the questioning, the applicant's lack of Turkish language ability and knowledge of local legal procedures should have made it all the more important for the authorities to ensure his access to a lawyer (see, mutatis mutandis, Sejdovic, cited above, §§ 54 and 103).
43.  It follows, therefore, that the applicant was questioned and prejudicial statements were drawn up when he was deprived of an important Convention safeguard. Thus, even though a lawyer was apparently appointed to represent him at one of the remand hearings (see paragraph 11 above) and though he was represented at trial and on appeal by a lawyer of his own choice, the lack of access to a lawyer while he was being questioned by the police irretrievably affected his defence rights.
44.  In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.
3.  Remaining complaints under Article 6 of the Convention
45.  Lastly, the applicant complained that the trial had not been conducted in a fair and impartial manner and that his defence arguments had not been taken into account by the trial court. He also complained that the interpreter provided by the police had not been impartial and that the interpreter who assisted him in the subsequent trial had not been adequately qualified.
46.  Having regard to its finding under Article 6 § 3 (c) of the Convention taken in conjunction with 6 § 1 (see paragraph 44 above), the Court considers that it is not necessary to examine these complaints separately.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  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
48.  The applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary damage.
49.  The Government considered this sum to be exorbitant and exaggerated, and submitted that the finding of a violation should be regarded as sufficient just satisfaction.
50.  The Court, taking into account the awards made in comparable cases (see Amer, cited in the text, § 90), and deciding on an equitable basis, awards the applicant EUR 5,000 in respect of non-pecuniary damage.
51.  The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Salduz, cited above, §  2, and the cases cited therein). The Court finds that this principle also applies in the present case. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should he so request (see Amer, cited in the text, § 91).
B.  Costs and expenses
52.  The applicant claimed that he had paid EUR 5,000 to the lawyer who had represented him in the criminal proceedings in the TRNC. No documentary evidence was submitted in respect of this claim. Furthermore, the applicant asked the Court to make an award for “costs of the case”, but did not specify a specific sum and did not submit any information or documents on which a calculation of his costs and expenses could be based.
53.  The Government drew the Court's attention to the lack of any documents in support of the applicant's claims.
54.  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. Regard being had to the above criteria and the applicant's failure to submit any quantified claim or documents, the Court makes no award under this head.
C.  Default interest
55.  The Court considers it appropriate that 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
1.  Declares the complaints under Article 6 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings;

3.  Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1;

4.   Holds that there is no need to examine separately the remaining complaints under Article 6 of the Convention;

5.  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 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;
(b)  that, from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

       Stanley Naismith                                                         Françoise Tulkens
             Registrar                                                                       President


[1].  An application introduced by the applicant’s co-defendant was examined by the Court in its judgment in the case of Amer v. Turkey, no. 25720/02, 13 January 2009.

Τρίτη, 25 Ιανουαρίου 2011

ΤΟ ΕΔΑΔ παραπεμπει την Εκκλησια της Κύπρου στην επιτροπη αποζημιώσεων


FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 66611/09
by CHRYSOSTOMOS
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 4 January 2011 as a Chamber composed of:
         Nicolas Bratza, President,
         Lech Garlicki,
         Ljiljana Mijović,
         David Thór Björgvinsson,
         Ján Šikuta,
         Päivi Hirvelä,
         Işıl Karakaş, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 26 November 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Chrysostomos II, is a Cypriot national, born in 1945. He is Archbishop of the Greek Orthodox Autocephalous Church of Cyprus and New Justinian and states that he is acting on behalf of the above Church as well as on behalf of other persons not listed or identified in the application form, namely the church’s parishioners. The applicant lives in Nicosia. He is represented before the Court by Mr A. Angelides, a lawyer practising in Nicosia.
The facts of the case, as submitted by the applicant, may be summarised as follows:
In the course of the events in northern Cyprus of 1974, the applicant states that they had to leave behind property and flee places of worship. The property claimed consists of immovable property (monasteries, chapels, churches and graveyards etc) and movable property (ecclesiastical vessels, grails etc). Since 1974 the applicant states that they have been prevented from enjoying the church’s property. The applicant further claimed that many properties had been destroyed, vandalised, looted or stripped of their religious function and are now used as Muslim religious sites, museums, bars, clubs, barns etc. Ecclesiastical vessels etc have been destroyed or sold.
COMPLAINTS
The applicant complained of a violation of Article 1 of Protocol No. 1 about lack of access and enjoyment of the property mentioned above following the invasion in 1974 by Turkish armed forces.
The applicant complained under Article 9 of the Convention that he, the Church and its parishioners have been continuously prevented from holding religious services in the religious sites situated in northern Cyprus and belonging to the Church. The applicant further complained under Article 11 of the Convention that their right to assembly has been continuously violated.
The applicant complained under Article 3 that, taken together with racial and religious discrimination, the consistency and long period of time of deprivation of access to property and the other substantive claims amount to inhuman and degrading treatment and torture.
Finally, the applicant complained under Article 14 of the Convention that the breaches of the above Articles have been committed exclusively to the detriment of Greek-Cypriots and/or followers of the Greek-Orthodox Church.
THE LAW
A. Standing
The applicant has named himself as the applicant in the application form. He has stated that he acts also on behalf of the parishioners of his Church. The Court observes however that he has neither included a list of the names of those concerned, nor any letters of authority which state that these persons authorise him to act on their behalf. It also appears that the title deeds submitted with the application in many cases identify individual local churches and religious bodies as owning the property without reference to the applicant or his Church.
In the circumstances, the Court does not consider that the parishioners, an unlisted and unidentified group of persons, can appropriately be regarded as applicants in the present application. It accepts, for the purposes of this application, that the applicant has the requisite authority to act on behalf of the Church as an entity and that he thus has legal capacity to make property and other claims on its behalf and on behalf of those individual churches and religious bodies under its umbrella.
B. Concerning property issues (Article 1 of Protocol No. 1)
1. Insofar as the applicant complains of interference with property rights as regards lack of access to property belonging to his Church or its subordinate entities in the northern part of Cyprus invoking Article 1 of Protocol No. 1, the Court recalls that applicants are required by Article 35 § 1 of the Convention to exhaust available, effective domestic remedies. In Demopoulos and Others v. Turkey [GC] (no. 46113/99 et al, decision of 1 March 2010, ECHR 2010-...) the Grand Chamber examined the issue of whether Greek-Cypriot applicant property-owners had available to them a remedy in respect of their complaints. It found that for the purposes of Article 35 § 1 of the Convention, the procedure before the Immovable Property Commission (“IPC”), and further appeal to the “TRNC” High Administrative Court, provided for in Law 67/2005, were to be regarded as “domestic remedies” of the respondent State and that no ground of exemption of the application of Article 35 § 1 of the Convention has been established in that regard. As regarded the efficacy of the framework of redress provided, it held:
“127. The Court finds that Law 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots. The applicant property owners in the present cases have not made use of this mechanism and their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies. It is satisfied that Law 67/2005 makes realistic provision for redress in the current situation of occupation that is beyond this Court’s competence to resolve.
128.  Lastly, it would stress that this decision is not be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution. If, however at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above. The Court’s ultimate supervisory jurisdiction remains in respect of any complaints lodged by applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress.”
The Court notes that neither the applicant, nor any other duly authorised representative of the Church or individual churches or bodies for which title deeds have been provided have made use of this mechanism. Nor have any claims been made as regards movable property, in respect of which the IPC also has competence to examine claims (see Demopoulos, cited above, §§ 35-37). The complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
2. While the applicant has not expressly invoked Article 1 of Protocol No. 1 as regards destruction and theft of property, he has claimed in his application form in general terms that property belonging to the Church has been subject to vandalism, destroyed and stolen. Insofar as these acts took place prior to the date of ratification of the Convention and Protocols by the respondent State on January 1987, the Court has no temporal jurisdiction to consider these complaints. No specific information has been provided as regards any such acts which might have occurred within the Court’s temporal jurisdiction or details given which might have established State responsibility for the vandalism or thefts concerning property established as belonging to the applicant or indicated that there had been compliance with the requirements of Article 35 § 1 as regarded exhaustion of domestic remedies and the six-month time-limit.
This part of the application must therefore be rejected globally as failing to disclose any issue under the Convention pursuant to Article 35 of the Convention.
C. Complaints concerning Articles 9 and 11 of the Convention
The applicant has also complained under the above provisions which guarantee respectively freedom of religion and freedom of assembly that the Church has been unable to carry out religious services on the properties mentioned above. The Court notes that these complaints are closely linked to those raised above concerning the inability to enjoy the property concerned. It has found that domestic remedies in this regard have not been exhausted before the IPC which is able both to order restitution of property and to award pecuniary and non-pecuniary damages in respect of any loss of enjoyment of the property. In the circumstances therefore, this part of the application raises no separate issue.
D. Remaining complaints
Having regard to the facts of the cases and its findings under Article 1 of Protocol No. 1 and Articles 9 and 11 of the Convention, the Court considers that no further issue arises for examination concerning the remaining complaints made by the applicant under Articles 3, 13 and 14 of the Convention (see Demopoulos, cited above, §§ 139-143).
For these reasons, the Court unanimously
Declares the application inadmissible.
     Fatoş Aracı                                                                       Nicolas Bratza
Deputy Registrar                                                                       President



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FIRST SECTION






CASE OF PANAYIOTOU v. CYPRUS

(Application no. 20009/06)










JUDGMENT


STRASBOURG

20 January 2011


This judgment will become final in the circumstances set out in Article 44 § 2 of he Convention. It may be subject to editorial revision.

In the case of Panayiotou v. Cyprus,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
         Christos Rozakis, President,
         Nina Vajić,
         Khanlar Hajiyev,
         Dean Spielmann,
         Sverre Erik Jebens,
         Giorgio Malinverni, judges,
         Stelios Nathanael, ad hoc judge,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20009/06) 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 Stavros Panayiotou (“the applicant”), on 4 May 2006.
2.  The applicant was represented by Mr M. Kyprianou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
3.  On 10 January 2008 the President of the First Section decided to communicate the complaint concerning the length of the proceedings. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
4.  Mr G. Nicolaou, the judge elected in respect of Cyprus, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Stelios Nathanael to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
5.  The applicant was born in 1966 and lives in the village of Kalepia, in the district of Paphos.
6.  The applicant was arrested on 23 July 2000.
7.  On 28 July 2000 he was charged under the Criminal Code (Cap. 154) with rape and various offences against morality.
8.  On the same date he was taken before the Paphos District Court which referred the case to the Paphos Assize Court (“the Assize Court”).
A.  Proceedings before the Paphos Assize Court (criminal action no. 6747/00)
9.  On 5 September 2000 the applicant appeared before the Assize Court and pleaded not guilty to the charges. His detention was ordered until his trial which was fixed to commence on 9 October 2000.
10.  Between 9 October 2000 and 22 March 2002 the case was adjourned on five consecutive occasions by the Assize Court owing to hearings in other cases.
11.  In the meantime, on 4 December 2000, the applicant was released on bail.
12.  The hearing commenced on 22 March 2002 and ended on 6 February 2003. One hundred and four hearings in camera were held within this period. There were no adjournments. During the trial the Assize Court heard approximately thirty witnesses and examined a considerable amount of material which included thousands of pages of evidence.
13.  On 19 March 2003 the Assize Court gave judgment in the case convicting the applicant of rape, defilement of a girl under 13 years of age, defilement of a girl between 13 and 17 years of age and abduction under sections 144, 153(1), 159 and 154 of the Criminal Code respectively.
14.  The court, in a lengthy judgment of 157 pages, examined the evidence given by the witnesses in depth and, after warning itself of the dangers of acting on uncorroborated evidence, accepted the complainant’s evidence in its entirety without recourse to corroborating evidence. It found that the complainant’s evidence was credible and that the main and intrinsic body of her evidence was characterised by clarity, consistency and firmness. It noted that the differences in her evidence were minimal and immaterial and that her credibility remained intact. The Assize Court, however, pointed out that, even if it had decided that corroborating evidence had been necessary, such evidence did exist in support of the applicant’s conviction. The Assize Court referred to examples of such evidence.
15.  On 20 March 2003 the applicant received one sentence of four years’ imprisonment for the offence of rape, seven sentences of four years’ imprisonment for the offence of defilement of a girl under 13 years of age, one sentence of one year’s imprisonment for defilement of a girl between 13 and 17 years of age and two sentences of six months’ imprisonment for abduction. All sentences were to be served concurrently.
B.  Appeal proceedings before the Supreme Court (appeals nos. 7426 and 7437)
16.  On 28 March 2003 the applicant appealed against his conviction (appeal no. 7426). The Attorney-General lodged an appeal against the sentences (appeal no. 7347).
17.  The applicant raised a total of forty grounds of appeal. The first ground concerned the manner in which the prosecution had presented its case and its conduct throughout the proceedings; the fourth, fifth, sixth and seventh grounds challenged the Assize Court’s assessment of the evidence given by the complainant and its decision to rely on it without recourse to corroborating evidence; the remaining grounds challenged the Assize Court’s evaluation of the evidence given by the other witnesses.
18.  On 3 April 2003 the Chief Registrar of the Supreme Court sent a letter to the Registrar of the Paphos District Court requesting to be informed of the number of pages of the transcript of the case and the amount of time it would take to prepare it.
19.  On 9 April 2003 the Registrar of the Paphos District Court sent the appeal notice to the Chief Registrar of the Supreme Court informing the latter that the court transcript amounted to 3,820 typed pages and would be sent to the Supreme Court by 31 December 2003.
20.  On 15 March 2004 the Chief Registrar of the Supreme Court sent a follow-up letter.
21.  On 16 March 2004 the Registrar of the Paphos District Court informed the Chief Registrar of the Supreme Court that efforts would be made to send the transcript by 6 April 2004.
22.  On 5 April 2004 the case file and the transcript of the first-instance proceedings were sent to the Supreme Court.
23.  On 30 April 2004 the parties were notified that the appeal hearing had been fixed for 25 June 2004 and that the written outlines of their submissions should be filed by 14 May 2004.
24.  On 10 May 2004 the applicant applied for an extension of the deadline for filing the written outline of his submissions on the ground that it was impossible to go through the extensive transcript of the case before the given deadline. The request was granted by the Supreme Court on 7 June 2004.
25.  On 5 July 2004 the applicant requested another extension and this was granted by the court on 22 September 2004.
26.  The written outlines of the submissions were filed on 22 October 2004 by the applicant and on 15 February 2005 by the Attorney-General.
27.  Supplementary outlines were filed on 28 February 2005 by the applicant and on 10 March 2005 by the Attorney-General.
28.  On 23 March 2005 the applicant applied for an adjournment of the hearing. This was granted and the hearing was adjourned until 24 May 2005.
29.  The hearing began on the above date and ended on 29 September 2005. Several hearings were held.
30.  On 9 November 2005 the Supreme Court, in a judgment of approximately twenty-three pages, dismissed the appeal and upheld the findings of the Assize Court. In particular it held as follows:
The principles on the basis of which the appeal court intervenes to set aside the findings of a first-instance court regarding the credibility of witnesses are known. The issue of witness credibility is a matter for the first-instance court. The appeal court intervenes only if the findings or the conclusions of the first-instance court contravene common sense or are not justified given the evidence or its own conclusions. In so far as omissions or contradictions in statements or evidence are concerned, for first-instance judgments to be set aside by the appeal court, these must be material, so they strike a fatal blow to the credibility of the witness or disclose his disposition to distort the truth.
We have carefully gone through both the above and the rest of the points in the statements and evidence of the complainant, which the appellant’s lawyer referred to us in order to point out omissions and contradictions. The same points were also put before the Assize Court, which also dealt with them extensively in its decision before finally accepting the evidence of the complainant. We consider that the reasons given by the Assize Court for its evaluation of both the omissions and the contradictions of the complainant are in all respects convincing and reasonable so as not to justify intervention by us. Its conclusion that the discrepancies in the complainant’s evidence ‘are minimal and completely immaterial with the result that they leave her credibility intact’ and that ‘the main and intrinsic body of her evidence concerning the various episodes of sexual intercourse as described in her evidence is characterised by clarity, consistency and firmness ... At no point in the cross-examination was the basic core of her evidence shaken’, finds us in agreement. Consequently, the relevant ground of appeal is dismissed.
The remaining grounds of appeal, except for one, which we will deal with further on, touch on the evaluation and the resulting findings of the Assize Court with reference to the evidence adduced by the prosecution to corroborate the evidence of the complainant and/or to prove its case against the appellant, always in relation to the evidence adduced by the defence to corroborate the evidence of the appellant and/or to rebut the evidence of the prosecution.
In view of our conclusion that the previous ground of appeal, which touches on the Assize Court’s acceptance of the complainant’s evidence in its entirety without recourse to corroborating evidence, is not well-founded, we consider that the extensive examination on our part of the remaining grounds of appeal would be of academic significance only, since, regardless of our conclusion relating to the one or the other ground, the appeal must be dismissed in the end. We confine ourselves, simply, to noting that we have not been convinced of the validity of any of these grounds. This is particularly the case with reference to the specialist scientific evidence of the geneticist M. K., a ground to which a great deal of time was devoted in the proceedings before us as well.
The last ground of appeal against the conviction of the appellant touches on the whole of the proceedings before the Assize Court, which, it should be noted, lasted for almost one year, and consists of the point that, according to the appellant, the prosecutor from the Attorney General’s Office ... presented his case in such an improper, unfair and oppressive way as to render the whole procedure vulnerable and the trial unfair. Inter alia, it makes the charge that [he] was particularly pugnacious throughout the whole trial and made constant verbal attacks and insulting statements and characterisations at a personal level at the expense of the defence lawyer, the appellant and certain witnesses for the defence; that he spied on both the defence lawyer and on some of the defence witnesses; that he raised unjustifiable obstacles and other difficulties to hinder the smooth conduct of the appellant’s defence thus causing unjustifiable prolongation of the proceedings, the length of which resulted in the violation of the appellant’s rights safeguarded by Article 30 (2) of the Constitution and Article 6 of the Convention on Human Rights; that he made extremely unfavourable and inadmissible statements about the appellant with the aim of influencing the court to his detriment; that he acted contrary to the professional responsibility and the basic duties and rights of prosecutors as adopted by the Council of Ministers on 6.10.2000 after their adoption by the International Union of Public Prosecutors on 23.4.1999 and that, in various respects, he put the defence in an unfavourable situation and caused it serious and irreparable harm.
It is a fact that on certain occasions the behaviour, phraseology and, in general, the reactions of [the prosecutor], particularly at the sensitive stage of the cross-examination of witnesses for the defence, exceeded the bounds which the high principles of the profession of lawyer impose and, particularly, of that of public prosecutor; principles which impose the demonstration of the highest possible self-restraint and tolerance towards the other side, particularly during cross-examination. Of course, the fact does not escape us that, in certain cases at least, the reactions of [the prosecutor] were to some extent occasioned by the attitude of the appellant’s lawyer. This, however, is not a justification. The unpleasant atmosphere of confrontation and tension which was created without reason between the lawyers, at specific phases of the proceedings, did not, in our judgment, deprive the appellant of a trial that was fair from all points of view. The Assize Court, with its patience, occasional interventions and its indications, mainly to [the prosecutor], restored the requisite calm to the entire proceedings and secured for the defence every possible opportunity to present its case in full. This is demonstrated, inter alia, by the exhaustive cross-examination of the prosecution witnesses and the very detailed examination of defence witnesses, as it emerges from the transcript of the trial.”
As regards the claim of the appellant’s lawyer that [the Prosecutor] ‘unnecessarily contributed to the creation of excessively lengthy and time-consuming proceedings that resulted in the violation of the ‘constitutionally safeguarded rights of the accused as provided for by Article 30 (2) of the Constitution and Article 6 of the Convention on Human Rights’, we observe that the proceedings did indeed take a long time but that this was mainly owing to the extensive case of the defence”.
31.  The Supreme Court also dismissed the Attorney-General’s appeal against the sentence.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LENGTH OF THE PROCEEDINGS
32.  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 fair ... hearing within a reasonable time by [a] ... tribunal ...”
33.  The Government contested that argument.
A.  Admissibility
34.  The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  Period to be taken into consideration
35.  The Court finds that the period to be taken into consideration started on 23 July 2000, the day of the applicant’s arrest (see Wemhoff v. Germany, 27 June 1968, § 19, Series A no. 7) and ended on 9 November 2005 when the Supreme Court gave its judgment on appeal. It therefore lasted approximately five years and three months at two levels of jurisdiction.
2.  Reasonableness of the period
(a)  The parties’ submissions
36.  The Government submitted that the length of proceedings in the present case had been reasonable, taking into account, in particular, its complexity. In this respect, they pointed to the great volume of evidence that was submitted before the Assize Court, which included complex scientific evidence, and to the large number of witnesses that the court had heard. The Government further submitted that although there had been one period of inactivity after the applicant had appeared before the Assize Court, once the trial of the case had started, hearings had been held almost every day. The Government noted that the period of inactivity had been caused by adjournments by the Assize Court due to the fact that it had had to sit in other hearings in other cases. Furthermore, the Government maintained that there had been no delays attributable to the Supreme Court during the appeal proceedings. All the adjournments that had occurred had been at the applicant’s request.
37.  The applicant disputed the Government’s submissions and argued that the length of the proceedings had been excessive. In this respect he pointed to the period of delay before the commencement of the trial caused by the consecutive adjournments by the Assize Court. He claimed, inter alia, that hearings had not been held continuously, on a day to day basis. As regards the appeal proceedings, the applicant noted that there had been a substantial delay in preparing the transcript of the first-instance trial and that this had been the reason why his lawyer had requested time extensions for filing the outline of his submissions.
(b)  The Court’s assessment
38.  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 applicant’s conduct and the conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
39.  The Court notes that the applicant was charged on 28 July 2000, five days after his arrest, and was taken before the Paphos District Court on that same date (see paragraphs 6-8 above). He appeared before the Paphos Assize Court on 5 September 2000 (see paragraph 9 above). The proceedings before that court lasted approximately two years and eight months. It is clear from the file that the proceedings were of a certain complexity: the court heard a substantial number of witnesses and had to examine a considerable amount of material (see paragraph 12 above). This is reflected in the lengthy and detailed judgment which was delivered very promptly following the conclusion of the trial (see paragraphs 13-14 above). Furthermore, the Assize Court held more than one hundred hearings within a period of about ten months (see paragraph 12 above).
40.  The Court notes, however, that there was a large period of inactivity before the trial actually commenced. In particular, between 9 October 2000 and 22 March 2002 the trial was continually adjourned by the Assize Court as it had to sit in hearings in other cases (see paragraph 10 above). The Court considers that this caused significant delay to the proceedings. It observes in this respect that an accused in criminal proceedings should be entitled to have his case conducted with special diligence and Article 6 is, in criminal matters, designed to avoid that a person charged should remain too long in a state of uncertainty about his fate (see, amongst other authorities, Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006). The Court also notes that there were no delays attributable to the applicant in these proceedings.
41.  As regards the appeal proceedings, the Court observes that they lasted approximately two years and seven months, nearly as long as the first-instance proceedings. The Court points, in particular, to the delay in the commencement of the appeal, as it took about a year for the transcript of the first-instance trial to be prepared (see paragraphs 18-22 above). The Court cannot ignore this delay which significantly prolonged the appeal proceedings and notes in this respect that it has identified delays in proceedings due to the same reason in other cases against Cyprus which it has examined (see, for example, Papakokkinou v. Cyprus, no. 4403/03, § 34, 14 December 2006; Tengerakis v. Cyprus, no. 35698/03, § 65, 9 November 2006; and Waldner v. Cyprus, no. 38775/02, § 42, 19 January 2006). Finally, the Court notes that there were no major delays attributable to the applicant in these proceedings.
42.  The Court observes that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial system in such a way that their courts can meet each of its requirements (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 45, ECHR 2000‑VII, and Massa v. Italy, 24 August 1993, § 31, Series A no. 265-B). In this respect, it notes that the delays in the present case related to organisational problems.
43.  Given the above, the Court considers that the “reasonable time” requirement was not complied with in the present case.
There has accordingly been a breach of Article 6 § 1.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A.  Complaints under Article 6 § 1 of the Convention
44.  The applicant raised a number of complaints under Article 6 § 1 concerning the fairness of the proceedings before the domestic courts.
45.  The applicant first complained that the Assize Court had made errors when evaluating the evidence submitted before it and, in particular, in accepting the evidence that had been given by the complainant without recourse to corroborating evidence. Secondly, the applicant complained that the prosecution had acted in an unfair and oppressive manner throughout the proceedings before the Assize Court rendering the whole trial unjust. Thirdly, the applicant complained that the Supreme Court had not examined all his grounds of appeal and had failed to give a reasoned judgment.
46.  As regards the applicant’s first complaint, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court’s task under the Convention is not to give a ruling on whether the witness statements were properly admitted as evidence, but to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (García Ruiz v. Spain, cited above; see also Mika v. Sweden (dec.), no. 31243/06, 27 January 2009)
47.  In the present case, the Court observes that the applicant had the benefit of adversarial proceedings and had a reasonable opportunity to present his arguments before the courts and contest the evidence submitted. The Assize Court examined all the evidence before it and, in a detailed and lengthy judgment, analysed its evaluation and conclusions in this respect. It found that the complainant’s evidence was credible in its entirety and that no recourse to corroborating evidence was necessary even though such evidence existed (see paragraph 14 above). The Supreme Court examined the Assize Court’s findings in this respect and noted that that court had carried out a thorough and extensive examination of the evidence put before it and that the reasoning given by the Assize Court was in all respects convincing and reasonable so as not to justify the Supreme Court’s intervention (see paragraph 30 above).
48.  Having regard to the above, the Court finds no indication that the assessment of the evidence by the Assize Court was arbitrary in any way.
49.  Concerning the applicant’s second complaint about the attitude of the prosecution throughout the trial before the Assize Court, the Court notes that the Supreme Court examined the applicant’s arguments in this respect and found that, although on certain occasions the prosecutor’s behaviour and language exceeded the bounds which the high principles of the profession of advocate imposed and, particularly, that of public prosecutor, the disagreeable atmosphere of confrontation and tension which had been created without reason between the advocates at particular phases of the proceedings did not deprive the applicant of a fair trial (see paragraph 30 above). The Supreme Court found that the Assize Court had, with patience and with its occasional interventions and indications, mainly to the prosecutor, restored the requisite calm to the entire proceedings and had secured for the defence every possible opportunity to present its case in full. The Supreme Court noted that this was demonstrated by, inter alia, the exhaustive cross-examination of the prosecution witnesses and the very detailed examination of defence witnesses, as it emerged from the transcript of the trial (see paragraph 30 above). The Court observes that the applicant has not submitted any evidence showing that this was not the case.
50.  As regards the applicant’s third complaint concerning the examination of his appeal by the Supreme Court and that court’s judgment, the Court reiterates that although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see, for example, García Ruiz v. Spain, cited above, § 26, and Klemeco Nord AB v. Sweden, no. 73841/01, § 39, 19 December 2006); a party does not have an absolute right to require reasons to be given for rejecting each of his arguments, nor is the Court called upon to examine whether arguments are adequately met (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288).
51.  In the present case the Court observes that the Supreme Court’s judgment was fully reasoned. It is true that the Supreme Court did not examine all the applicant’s grounds of appeal in depth. The reasons, however, for this are clear: as the Supreme Court examined and upheld the Assize Court’s findings concerning the complainant’s evidence and its decision not to have recourse to corroborating evidence for the purposes of convicting the applicant, it then considered that it was unnecessary to carry out an extensive examination of the remaining grounds of appeal which concerned the evaluation of such corroborating evidence and the resulting findings of the Assize Court (see paragraph 30 above). Furthermore, it should be noted that the Supreme Court observed that it had not been convinced of the validity of any of the grounds raised by the applicant challenging the findings of the Assize Court (see paragraph 30 above). In view of the above, the Court considers that there was no need for the Supreme Court to enter into a detailed examination of these grounds.
52.  The applicant therefore may not validly argue that the Supreme Court did not properly examine his arguments and that its judgment lacked reasons. No unfairness or arbitrariness can be detected.
53.  Given the above, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
B.  Complaints under Article 6 § 2 of the Convention
54.  The applicant further complained under Article 6 § 2 of the Convention of a violation of the presumption of innocence. In this respect he alleged that during the proceedings the burden of proof had been unfairly shifted to the defence a number of times and that the Supreme Court had failed to examine all the appeal grounds or issue a judgment with sufficient reasoning.
55.  The Court notes that there is no indication in the case file that the domestic courts had a preconceived view of the applicant’s guilt: no evidence has been adduced to show that the applicant’s right to the presumption of innocence was violated. Furthermore, with regard to the second limb of the applicant’s complaint, the Court refers to its conclusions concerning the Supreme Court’s examination of the appeal in respect to the applicant’s complaint under Article 6 § 1.
56.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C.  Complaints under Article 6 § 3 of the Convention
57.  Invoking Article 6 §§ 3 (b) and (c), the applicant complained that he had not been given adequate time or facilities for the preparation of his defence and that he had been refused legal aid, in particular, for the summons of an expert witness. Finally, the applicant complained of a violation of the rights of the defence in respect of witnesses under Article 6 § 3 (d).
58.  To the extent that the applicant is complaining under Article 6 § 3 (b) about the preparation of his defence, the Court first observes that it does not appear that the applicant raised this complaint before the domestic courts. In any event, the Court notes that this complaint is unsubstantiated. There is no indication in the case file that the applicant’s defence rights were not properly respected.
59.  With regard to the applicant’s second complaint under Article 6 § 3 (c), the Court notes that the applicant has not submitted any documents indicating that he applied for legal aid, that he was refused such a request or that he appealed against any such decision. He has therefore not substantiated his complaint under this head.
60.  Lastly, to the extent that the applicant is complaining of a violation of Article 6 § 3 (d), the Court first notes that it does not appear that he raised this complaint before the domestic courts. In any event, the Court observes that the applicant has submitted this complaint in a general manner without providing any explanations or details as to why his rights under this Article have allegedly been infringed.
61.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
62.  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
63.  The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage. He submitted that he had suffered from anxiety and stress owing to the excessive length of the proceedings and had been subjected to humiliation, hatred and rejection from his friends and the small society of the village in which he lived.
64.  The Government contested the claim.
65.  The Court considers that the applicant must have suffered some non-pecuniary damage, such as frustration, resulting from the protracted length of the proceedings. Ruling on an equitable basis, it awards the applicant EUR 3,200 under this head, plus any tax that may be chargeable on that amount.
B.  Costs and expenses
66.  The applicant also claimed EUR 80,820 for the costs and expenses incurred in the proceedings before the domestic courts. These included the fees of experts who had testified for the defence and the legal fees of his lawyer for the appearances made before the Assize Court and the Supreme Court.
67.  The Government contested the claim.
68.  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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings.
69.   The applicant made no claim in respect of costs and expenses before the Court. The Court therefore makes no award under this head.
C.  Default interest
70.  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
1.  Declares unanimously the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds by six votes to one that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds by five votes to two
(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 3,200 (three thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
         Søren Nielsen                                                             Christos Rozakis
             Registrar                                                                       President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Stelios Nathanael
C.L.R.
S.N.

DISSENTING OPINION OF JUDGE NATHANAEL
While I share the view taken that the complaint is indeed admissible, I have to voice my different conclusion on the merits. My dissenting opinion is based on the following considerations which I believe become apparent upon a closer examination of the facts. The factual premise remains the same but its appreciation which was not highlighted in the observations of the Government brings about a different outcome. The following relate to both the first instance proceedings as well as the appeal process.

The first instance proceedings:

From the record of the proceedings before the Paphos Assize Court the following can be noted. They are set out in chronological order for convenience, although their importance obviously differs.

It appears from the record of 4 December 2000 that the hearing of the case was adjourned because the same Assize Court had to commence another urgent criminal case, a homicide case, (previously adjourned) about to begin on the following date 5 December 2000. The record of that date shows that one of the lawyers involved in the homicide case was Mr M. Kyprianou the same lawyer who appeared in the case under discussion. That other case was recorded as number 7919/00 which was in fact the Panovits case which was finally brought before the European Court of Human Rights under application no. 4268/04, judgment issued on 11 December 2008. This follows easily from the appeal judgment of the Supreme Court published in (2003) 2 C.L.R. 310 and referred to in the judgment of the European Court of Human Rights.

On the same date, 4 December 2000, the Paphos Assize Court having in mind the lengthening of the time span ordered the release of the applicant on bail notwithstanding prosecution’s objection. The applicant remained on bail terms thereafter until his conviction by the Assize Court on 19 March 2003.
On 19 November 2001, defence lawyer himself, Mr M. Kyprianou, essentially requested an adjournment stating that having in mind the bulk of the case and his own schedule it would be preferable if the case was adjourned. Also defence lawyer wanted to discuss DNA issues with the prosecution authority, as well as to be given part of the exhibits in order to place them before the applicant’s own expert for study as he had carried out a preliminary investigation. The Assize Court granted the adjournment not only because defence requested so, but because of its own lack of time as it was involved in two other continued hearings. It follows that the adjournment between 19 November 2001 and 22 March 2002 could not be attributed solely to the Assize Court as it might have been granted in any event or at least it was also desired by defence as well.

On 22 March 2002 counsel for the defendant for the first time raised an issue with regard to the particulars of the charges although he could have done so on any one of the previous dates when the case was fixed or listed for hearing. This led to an adjournment and the amendment by the prosecution authority of the charges twice, so that evidence was in fact first given on 28 March 2002.

Defence lawyer on behalf of the applicant never raised any objection to the various adjournments given.

The appellate proceedings:

Although admittedly the record of the Assize Court trial was delayed for one whole year which set back the hearing of the appeal for that period of time, it should also be noted that defence had on three different occasions (10 May 2004, 5 July 2004 and 23 March 2005), requested an adjournment of the appeal hearing the first two on account of the need to study the record of the trial which contained the whole of the evidence. It was stated that it was impossible to go through the 3,820 typed pages of the transcript during the time given. The Supreme Court granted the adjournments so defence lawyer would not feel in any way embarrassed or pressed into commencing the hearing, although the grounds of appeal were well settled and filed with the appropriate Registry within the 10 day limit provided by the Rules. The requested adjournments set back the commencement of the appeal for a whole year. It may thus be noted that the time lost on account of the adjournments “compensates” in a way the one year period inactivity on account of the delay of the preparation of the transcript. Another important element to be taken into account is the fact that the requested adjournments were not in any event necessary as the lawyer who defended the applicant before the Assize Court was the same who appeared at the appeal. He was therefore fully conversant with the facts and the evidence and moreover he had, as the record shows, always the benefit of a junior advocate sitting with him during the trial who must have taken notes throughout.

The fourth criterion:

Further to the above, one may well argue that based on the case law of the Court, in the so called fourth criterion or factor that of “what is at stake” for the applicant, the cases revolve around factors such as the applicant’s employment, (Buchholz v. FRG (1981)), civil status (Sylvester v. Austria (2005)), child custody, health, reputation, title to land, compensation for road accident, financial factors like interest charged on the disputed amount, likelihood of life imprisonment or other heavy sentence (Henworth v. the United Kingdom(2004)).

In the case under discussion, the Applicant was 34 years old, was a co-owner of a restaurant, later turned into a kiosk business and was released on bail on 4 December 2000, 5½ months after his arrest and detention. So the urgency factor necessitating a more rigorous standard to be applied when the accused is in detention (Abdoella v. the Netherlands (1992)), was not as high or demanding as would have been otherwise. Moreover the lengthening of the case, as recognised by the Supreme Court in its appeal judgment, was to some extent attributable to the way the defence was conducted. One may stress here that the applicant had on two occasions voluntarily confessed the crime in written statements which were subsequently, as was his constitutional right, challenged but were nevertheless upheld by the Assize Court and sustained on appeal. Despite also the existence of strong DNA scientific evidence implicating the applicant into having sexual contact with the complainant, who was under age, this was also challenged.

It follows from the above that the applicant had no recognisable at stakefactor that would necessitate urgent hearing. That perhaps explains also the three consecutive adjournments requested by the defence. It is also quite important to note that at the appeal stage, the Applicant raised the issue of breach of Article 6.1 of the Convention (same as Article 30.2 of the Cyprus Constitution), not by attributing it directly to the length of the proceedings, but due to the unfairness in the overall treatment of the applicant and his lawyer due to the way the prosecution presented its case which was thought of as improper and oppressive for the defence. The lengthening of proceedings was presented as only a side effect of the above. This ground of appeal was rejected by the Supreme Court (see also paragraphs 12 and 15.3 of the present Application).

So the complaint against a speedy trial was only partially attributed to the adjournments given by the Assize Court, the other part raising issues relating to the way the prosecution handled the case.

It should be added, finally, that at the mitigation stage for the purposes of sentencing, defence lawyer only raised the issue of delay in the proceedings in relation to the loss of possibility of presidential pardon by the then newly elected President of the Republic.

Moreover, according to s. 117(1) of the Criminal Procedure Law, CAP 155, as amended, imprisonment commences on the date the sentence is pronounced but, unless the Court otherwise orders, it is reduced by the period of time the convicted person remained in custody pending or during trial. The Assize Court having not given any order to the contrary, the sentence of the applicant was accordingly modified to take into account his period of custody.

Overall, the case, although there was a delay that could have been avoided, could be treated as not falling within the unreasonable delay parameters as established by the case law of the Court, in view of the way the defence handled the case, the overall complexity of the case, necessitating 104 days of hearing before the Assize Court and several hearings at the appellate stage, the enormous transcript, the fact that the applicant was released at an early stage of the proceedings and that he had nothing tangible at stake to lose. The overall period of 5 years and 3 months, at two levels of jurisdiction, should be in fact 4 years and 3 months allowing for the one year delay solely attributed to the defence. The frustration attributed to the protracted length of the proceedings, in assessing damages, was a theoretical one, as one should recognise that there is a frustration element inherent in any criminal case, especially of his nature. There would have indeed been frustration if the applicant was subsequently acquitted which was not the case, as he was found guilty as charged, making him a convicted felon, hardly in need of any compensation.

In view of all the above, I would dismiss the application on the merits.