THIRD SECTION
CASE OF ALTIUS INSURANCE LTD v. CYPRUS
(Application no. 41151/20)
 
 
JUDGMENT
 
Art 6 § 1 (civil) • Reasonable time • Excessive length of proceedings
Art 13 (+ Art 6 § 1) • Lack of effective remedy • Domestic judicial practice separating examination of length claims by level of jurisdiction at odds with Court’s approach to examining overall length of proceedings

 
STRASBOURG
24 October 2023
 
 
FINAL
 
19/02/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Altius Insurance Ltd v. Cyprus,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd, judges,
and Olga Chernisova, Deputy Section Registrar,
Having regard to:
the application (no. 41151/20) 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 Altius Insurance Ltd (“the applicant company”), on 8 September 2020;
the decision to give notice to the Cypriot Government (“the Government”) of the complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 concerning the length of the domestic civil proceedings;
the parties’ observations;
Having deliberated in private on 5 September and 26 September 2023,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The case concerns the length of civil proceedings and the effectiveness of domestic remedies in this regard. THE FACTS
2. The applicant company is a limited liability company incorporated under Cypriot law, with its registered office in Nicosia. It was represented by Mr A. Demetriades, a lawyer practising in Nicosia. 3. The Government were represented by their Agent, Mr George L. Savvides, Attorney General of the Republic of Cyprus. 4. The facts of the case may be summarised as follows. PROCEEDINGS FOR BREACH OF CONTRACTCivil action no. 4099/2004 before the Nicosia District Court

5. On 6 May 2004 the company P.I.C. lodged a civil action against the applicant company with the Nicosia District Court for breach of contract. 6. Between 21 May and 21 June 2004, the parties submitted their statements of case. 7. Between 2 July 2004 and 27 January 2005 the case was listed for directions several times, either at P.I.C.’s request or by decision of the court. 8. In the meantime, on 10 January and 21 February 2005 respectively the applicant company and P.I.C. filed an application for the disclosure of documents. From then until 4 May 2005 the court applied the relevant procedures, ordering the parties in turn to produce the necessary documents. 9. On 31 May 2005 the hearing of the case was postponed because P.I.C.’s lawyer withdrew from the case. It was listed for directions on 16 September 2005. 10. On 2 September 2005 P.I.C. filed an ex parte interim application for a freezing order in respect of the applicant company’s assets. Various procedural steps were undertaken by both parties. On 24 February 2006 the court dismissed the interim application. 11. On 11 April 2006 the court fixed a hearing date of 16 November 2006 for the main proceedings, a date which was later postponed by the court until 10 May 2007. 12. Between 10 May 2007 and 30 January 2008 the court adjourned the hearing twice following requests to that effect by P.I.C. 13. On 30 January 2008 the court adjourned the hearing by mutual agreement between the parties and the case was listed for directions on 6 February 2008. On that date, the hearing was adjourned for unknown reasons and the case was listed for directions on 5 March 2008. 14. In the meantime, on 27 February 2008 the applicant company filed an application to amend its defence and counterclaim and the application was listed for a hearing on 5 March 2008. On 12 March the court allowed the aforementioned application and ordered the applicant company to file the amended documents within fifteen days. On 21 March 2008 the applicant company filed its amended defence and counterclaim. On 23 April 2008 P.I.C. filed its reply and amended defence to the counterclaim. The case was listed for directions on 19 June 2008. On that date, the court scheduled the case to be heard on 11 and 12 November 2008. 15. On 11 November 2008 the applicant company applied for an adjournment to allow the parties to draw up a document containing the agreed facts. On the same date, P.I.C.’s lawyer informed the court that they would be unable to attend the hearing on 12 November 2008 and asked for it to be adjourned. The court allowed the parties’ requests, informing them that it would assign a relatively early date for the hearing considering the delays that had already occurred in the case up to that date. The court listed the case for directions on 3 December 2008. 16. On 3 December 2008 the applicant company asked for the case to be postponed owing to a bereavement. The court listed the case for directions on 7 January 2009. 17. On 7 January 2009 the applicant company informed the court that it was ready to proceed with the trial. P.I.C. asked the court to schedule the case for a hearing. The court scheduled the case for a hearing on 10 April 2009 and listed the case for directions on 3 February 2009 to allow the parties, in the meantime, to examine the possibility of narrowing the issues in dispute. 18. On 3 February 2009 the parties informed the court that there were no further undisputed facts. 19. On 10 April 2009 P.I.C. applied for an adjournment. The applicant company’s lawyer expressed his disagreement, explaining that his client had been affected by the fact that the case had been adjourned multiple times by P.I.C. The court acknowledged the effect of the adjournments on the applicant company but, considering all the relevant factors, decided to allow the adjournment and scheduled the case for a hearing on 22 and 23 September 2009. 20. On 22 September 2009 the first hearing took place. This was followed by hearings on 23 September 2009; 5 and 9 October 2009; 6 and 17 November 2009; 12, 14 and 18 January 2010; 23 February 2010; and 18 March and 14 June 2010. 21. The case was adjourned twice at the request of the applicant company, first from 23 October to 6 November 2009 and then from 12 to 18 March 2010. 22. The case was also adjourned on two other occasions at P.I.C.’s request, first from 4 December 2009 to 12 January 2010 and then from 21 January to 3 February 2010. 23. On 14 June 2010, when the hearing was concluded, the applicant company’s lawyer requested a three-week extension to file his final submissions. The court instructed the parties to do so by 17 September 2010. On that date, the applicant company’s lawyer requested a further extension. The court rescheduled the case for final submissions on 27 September 2010. 24. On 27 September 2010 the parties filed their final submissions in writing and the court reserved judgment. 25. On 6 December 2010 the court delivered its judgment and dismissed the case. Legal costs and expenses were awarded to the applicant company. Civil appeal no. 28/2011 before the Supreme Court
26. On 17 January 2011 P.I.C. lodged an appeal with the Supreme Court, challenging the judgment of the Nicosia District Court. 27. On 23 November 2011 the appeal was listed for directions and the Supreme Court instructed the parties to file the outline of their arguments. 28. On 5 January and 16 February 2012 respectively P.I.C. and the applicant company filed the outline of their arguments. 29. On 18 October 2016 the hearing of the appeal began and concluded on that date. The Supreme Court reserved judgment. 30. On 20 December 2017 the Supreme Court delivered its judgment, allowing the appeal and reversing the Nicosia District Court’s judgment by two votes to one. The applicant company was ordered to pay 1,823,767 euros (EUR) in damages, plus legal costs and expenses. 31. On 9 January 2018 the Supreme Court’s judgment was amended to include statutory interest from 6 May 2004, the date on which civil action no. 4099/2004 was filed. It was calculated at EUR 1,350,000. 32. The applicant company unsuccessfully challenged the imposition of that interest. Eventually, on 19 January, 21 March and 16 April 2018 respectively it paid the following amounts: EUR 1,823,767 to P.I.C. for the judgment debt, EUR 50,000 to P.I.C.’s lawyers in legal costs, and EUR 1,350,000 to P.I.C. corresponding to the interest due. PROCEEDINGS UNDER LAW 2(I)/2010
33. On 19 November 2018, relying on Law 2(I)/2010, the applicant company filed a civil action (no. 2/2018) against the Attorney General with the Supreme Court complaining about the overall length of the domestic proceedings (cases nos. 4099/2004 and 28/2011). It claimed, inter alia, that the first-instance proceedings had lasted approximately seventy-nine months, while the appeal proceedings had lasted eighty-three months. Given that the reasonable time for concluding the first-instance and appeal proceedings had been three years for each (thirty-six months), the applicant company claimed that the first-instance proceedings had been delayed by forty-three months, while the appeal proceedings had been delayed by forty-seven months. The applicant company claimed EUR 362,812.50 (corresponding to forty-three months out of one hundred and sixty-two) and EUR 396,562.50 (corresponding to forty-seven months out of one hundred and sixty-two) in respect of pecuniary damage for the statutory interest it had had to pay because of the delays in the first-instance and appeal proceedings. It also made a claim in respect of non-pecuniary damage for the alleged uncertainty it had suffered while the proceedings were pending. It claimed EUR 415,353 for the alleged delay in civil action no. 4099/2004 and EUR 800,551 for the alleged delay in appeal no. 28/2011. The applicant company further supported in its written pleadings, with reference to case-law of the European Court of Human Rights, that the Supreme Court should abstain from its established case-law (see paragraph 41 below) and examine the delays which occurred at the domestic proceedings as a whole. The applicant company challenged the Supreme Court’s approach and maintained that in the present case the Supreme Court had the possibility of taking into account the delay which occurred at first instance arguing that the pecuniary damage it had sustained had only materialised upon appeal. The applicant company specifically claimed that had the Supreme Court failed to consider the delay before the first instance court, it would be deprived of an effective remedy as required by Article 13 of the Convention, as the damage it had sustained had been caused due to the retroactive application of the legal interest from the day of the filing of civil claim no. 4099/2004. 34. On 15 July 2020 the Supreme Court delivered its judgment. First, it rejected as inadmissible the complaints concerning civil action no. 4099/2004, finding that a separate action should have been filed within a year from the delivery of the judgment of the first-instance court as, according to the court, Law 2(I)/2010 separated the examination of claims regarding the length of first-instance and appeal proceedings. As regards the separate stages of actions brought under Law 2(I)/2010, the court stated, inter alia, as follows:
“As stated on appeal in Application no. 1/2018, Zia and others, 9.9.2019, in which a similar matter was examined:
There are two ways of making a claim under the Law:
(a) By filing a civil action, if the case has been concluded by a final judgment (εάν η υπόθεση περατώθηκε με τελεσίδικη απόφαση). This is true whether it is a final judgment of the District Court or a final judgment of the Supreme Court (τελεσίδικη απόφαση Ανωτάτου Δικαστηρίου). As we previously mentioned with reference to Kaoula v. The Attorney General, civil case no. 1/2017,4.7.2018 and previous case‑law, the term ‘final’ has the meaning of a final judgment without it being connected to the right of appeal (ο όρος τελεσίδικη απόφαση έχει την έννοια της τελικής απόφασης χωρίς να συναρτάται με το δικαίωμα έφεσης). In fact, if the claim falls under this provision of the Law, it should be raised within one year from the date of conclusion of the case by a final judgment. Similarly, the president of the District Court has jurisdiction to hear such claims ... when it is a concluded final judgment. If the claim concerns a concluded appeal, the jurisdiction [to hear the case] belongs to three members of the Supreme Court (with the specifications set out in the Law). (b) By filing an application. Claims concerning a non-concluded case, which precisely is not considered finalised (in the above sense of a final judgment), may be raised this way, it being noted that there is no deadline for such claims ... The structure and philosophy of the Law as it appears from a unified reading of the aforementioned sections, and in the light of the considerations in Dimitriou v. Attorney-General of the Republic, application no. 2/13, 27.3.2014, cannot lead to any other reasonable interpretation, as suggested by the applicant’s lawyer. A clear distinction is made between the remedies and their conditions, on the one hand in a District Court or Supreme Court case, following a final judgment, in which only a civil action can be lodged, and on the other hand, in a case which has not been concluded as above, in which the action is filed in the form of an originating application, with a separate context always between the first-instance and the appellate jurisdiction.
...These are independent claims concerning compensation for delays [in] first‑instance and appeal [proceedings] and this is not related to the content of the first decision...As a result, the court can consider as relevant time and related claims or testimony, those that are included in time in the context of the appeal only ... In our opinion, the claim that the claimant was not aware of its damages after the conclusion of the proceedings, as raised by [its lawyer], is irrelevant. The law is clear and each party must proceed based on its existing data.”
35. As regards the applicant company’s claim concerning the length of the appeal proceedings, the court held as follows:
“Considering the overall period from the filing of the appeal (17.1.2011) to the issuance of the decision (20.12.2017), almost [seven] years must be considered an unreasonable time. In the circumstances of this particular case, the appeal would have to be heard and a decision delivered within a period of up to three years. During the rest of the time, there was a breach. It is a not particularly complicated case, at least in its legal aspects, and the parties did not contribute with their actions or omissions to the delay. Despite the existence of a minority decision, the whole process could have been concluded within [three] years. We will agree with Mr. Demetriades that the research of the Council of Europe CEPEJ (European Judicial Systems – Efficiency and Quality of Justice CEPEJ STUDIES no. 26 of 2018) is indicative of the average length of civil proceedings. Table 5.8. [on] page 250 presents the time for completing civil and commercial cases at first instance [namely five hundred and thirteen days at first instance in 2010] and Table 5.17 [on] page 264 presents the time for completing civil and commercial cases on appeal [namely one thousand one hundred and ninety-four days in 2010 and three hundred and forty in 2012]. Mr. Demetriades is also correct in his observation that it is not entirely the responsibility of the judicial authorities but generally of the State, which ought to furnish the judicial authorities with the means for the short adjudication of cases. It is not necessary to enter into statistics and numbers of pending appeals. The volume of cases is well known, and counsel sets out the facts correctly.
...On the basis of the above, the appeal was heard in breach of the reasonable time [requirement] by approximately [four] years and the claimant is entitled to general damages in this respect. We certainly have no doubt that the claimant as a company may be the victim of a violation of an individual right, in this case the [right to a hearing within a] reasonable time.
...”
36. As regards the applicant company’s claim in respect of pecuniary damage, the court held:
“...The [applicant company’s claim in respect of pecuniary damage] ignores the fact that since the [applicant company] was not liable for the above amount on account of the first-instance decision, legally owed nothing and had therefore been in a position to possess the aforementioned amount of interest for its own benefit or accrue interest on it by way of deposits or otherwise. This amount cannot therefore be recovered as actual damages. The issue should be given a more rational approach than that proposed by the [applicant company]. The appeal was registered on 17.1.2011 and had the appeal decision been delivered in January 2014, the [applicant company] could not have maintained any complaint regarding the appeal process. But what was the consequence of the fact that the judgment on appeal was not delivered in January 2014, but three years and eleven months later, on 20.12.2017? The appeal judgment, regardless of when it was delivered, would have had the same content, namely the award against the [applicant company] of the amount of EUR 1,823,767 plus statutory interest from 6.5.2004 when the action was registered. The result of the delay complained of by the [applicant company] was that instead of being asked to pay the amount plus interest in January 2014, it was asked to pay it in December 2017. On the one hand, [the applicant company] received extra time of [forty-seven] months, but on the other hand, [it] was charged statutory interest on the amount of EUR 1,823,767 for a period of [forty-seven] months, from January 2014 to December 2017. [The applicant company] calculated this amount as EUR 396,562.50, which we accept as correct. In order to determine [the applicant company’s] pecuniary loss, the extra time [it] received as a benefit should be quantified in money and deducted from the amount of EUR 396,562.50, to determine whether there is a remaining balance. No such testimony has been offered and therefore no pecuniary loss has been demonstrated.”
37. Lastly, in making the assessment for its award for damages, the court considered that the above issue should be considered in the framework of general damages, not strictly pecuniary damage, for the overall inconvenience caused while waiting for a decision. The court agreed that the uncertainty as to the debt constituted an element that should be taken into account, especially bearing in mind the level of the amounts and the nature of the applicant company’s activities as an insurance company. Guided by the principles of the Court in Comingersoll S.A. v. Portugal ([GC], no. 35382/97, § 29, ECHR 2000‑IV) and making an overall assessment, the Supreme Court awarded the applicant company EUR 5,000 plus interest from the date on which the claim was filed, as well as costs. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic law and practiceThe Courts of Justice Law (Law no. 14/1960, as amended)

38. Section 33(2) currently provides as follows:
Section 33 - Interest on debts ... and decisions
“(1)  ... (2)  Each decision, including the part thereof relating to legal costs, unless otherwise provided for in subsection (1), shall, subject to the provisions of subsection (4), bear interest at 5.5% per annum from the date of registration of the civil action, or with respect to pending civil actions, from the date of entry into force of the Courts (Amendment) (No. 2) Law of 2008, until final repayment of the debt:
It is understood that the court may, when appropriate, award interest:
(a)  in the full amount awarded in the decision, for only part of the period between the date of registration of the civil action and the date of the decision, or
(b)  in respect of only part of the amount awarded in the decision, for all or only part of the period between the date of registration of the civil action and the date of the decision: ...”
39. The Courts (Amendment) (No. 2) Law of 2008, mentioned in section 33 above, changed the statutory interest rate from 8% to 5.5% per annum. Law on Effective Remedies for Violations of the Right to a Determination of Civil Rights and Obligations within a Reasonable Time (Law 2(I)/2010)
40. The relevant provisions of Law 2(I)/2010 are set out in detail in Panayi v. Cyprus ((dec.), no. 46370/09, 23 September 2010). For the purposes of the present case, the following sections are set out:
Preamble
“Whereas Article 6 § 1 of the European Convention on Human Rights and Article 30 § 2 of the Constitution of the Republic of Cyprus provide for the right to a determination of civil rights and obligations within a reasonable time,
And whereas in a number of individual cases against Cyprus the European Court of Human Rights found violations of Article 6 § 1 of the Convention on the grounds that the civil rights and obligations of the applicants in civil cases and appeals had not been determined by the Cypriot courts within a reasonable time as required by the above‑mentioned Article and also found a violation of Article 13 on the grounds that there were no effective remedies in the Republic as required by Article 13 regarding the applicants’ allegations of a violation of the requirement under Article 6 § 1,
And whereas the Republic’s obligation under Article 46 of the Convention to comply with the aforementioned judgments of the European Court of Human Rights is under the supervision of the Committee of Ministers of the Council of Europe and requires the adoption of measures preventing future violations such as those found by the Court in the above-mentioned individual applications,
And whereas a number of individual cases against the Republic are pending before the European Court of Human Rights for violations of Article 6 § 1 and [Article] 13 of the Convention regarding determination of the applicants’ civil rights and obligations in civil cases and appeals,
And whereas the Republic is bound by Article 1 of the Convention to secure the rights of the Convention, including the right to effective domestic remedies for a violation of the right to a determination of civil rights and obligations within a reasonable time ...”
Section 4 - Actionable right
“The right to a determination of civil rights and obligations within a reasonable time in a case to which this Law applies is actionable, and anyone who alleges that he or she is a victim of a violation of that right may have recourse to the court with jurisdiction by way of an action against the Republic, by virtue of this Law, seeking the remedies for the violation provided for in this Law.”
Section 5 – Bringing an action for violation of the right
“(1) An action under section 4 may be brought for violation of the right in a case concluded by a final court judgment concerning a violation of the right at any stage of the case, including that of the execution of a court judgment, irrespective of whether responsibility for the violation at the execution stage rests on the judicial or any other authorities of the Republic. The action shall be brought within one year of the date of conclusion of the case by a final court judgment or the date of execution, as the case may be, unless the court considers that, in the circumstances of the case, it was not reasonably possible to bring the action within the above period ...”
Section 6 - Court with jurisdiction to examine an action for
violation of the right
“(1)  Notwithstanding the provisions of any other law, the court with jurisdiction under this Law to examine and determine an action under sections 4 and 5 for a violation of the right to a determination of civil rights or obligations within a reasonable time in cases concluded by a final judgment are:
(a)  in relation to district court cases, the administrative president of any district court who, in a case in which, according to the action, the claimant’s right to determination of his civil rights or obligations within a reasonable time has been violated, did not exercise duties in the court in which the case was pending and did not participate at any stage of its examination, or if there is no administrative president who did not exercise duties in the court in which the case was pending and did not participate at any stage of its examination, the immediately senior president of the district court or any other judge satisfying the above whom the Supreme Court may wish to designate. (b)  in relation to Supreme Court cases, [any] three judges of the Supreme Court [whom it] may wish to designate. (2)  The judgment of the court with jurisdiction under subsection (1)(b) is final and not subject to appeal.”
Section 7 - Right to an examination of allegations of a violation of
right in pending cases
“(1)  Without prejudice to the right to bring an action under sections 4 and 5, a person who is a party to a pending case to which this Law applies has the right, at any stage of the proceedings whilst the case is pending, to have recourse to the legal remedies provided under subsection (2) in relation to the claim that his right to determination of his civil rights or obligations within a reasonable time has been violated.

Outcome for Article 13: violation