THIRD SECTION
CASE OF IRODOTOU v. CYPRUS
(Application no. 16783/20)
 
 
 
JUDGMENT
 
Art 6 (criminal) • Reasonable time • Excessive length of private criminal proceedings against the applicant discontinued by a decision of the Attorney General (nolle prosequi)
Art 13 (+ Art 6 § 1) • Lack of an effective remedy

 
STRASBOURG
23 May 2023
 
FINAL
 
23/08/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Irodotou v. Cyprus,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Georgios A. Serghides,
 Yonko Grozev,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 16783/20) 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 a Cypriot national, Mr Marios Irodotou (“the applicant”), on 23 March 2020;
the decision to give notice to the Cypriot Government (“the Government”) of the complaints concerning the length of private criminal proceedings under Article 6 § 1 of the Convention and the alleged absence of an effective domestic remedy under Article 13 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 2 May 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the length of private criminal proceedings which were ended by the Attorney General’s decision to discontinue the proceedings, and the alleged absence of an effective remedy in that connection. THE FACTS
2. The applicant was born in 1964 and lives in Paphos. He was represented by Mr K. Manolis, a lawyer practising in Paphos. 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. 5. On 18 June 2013 the District Court of Paphos (the District Court), in its judgment in civil case no. 3594/12, ordered the applicant to pay the Cooperative Credit Company of Geroskipou and East Paphos 300 euros (EUR) monthly, starting from 1 September 2013 and continuing until such a time as the debt mentioned in that judgment, plus interest, would be paid off (“the court order”). 6. On 2 March 2015 a private prosecution was brought against the applicant by Paphos Cooperative Savings Bank Ltd (case no. 1312/15) before the District Court for his failure to pay instalments due under the court order between 1 September 2013 and 1 January 2015. 7. On 3 April 2015 the case was notified to the applicant for the first time for a reply to the charges. He entered a non-guilty plea and the case was set for a hearing on 5 November 2015. 8. From 5 November 2015 to 22 March 2017 the hearing of the case was adjourned on four occasions, mainly on account of the District Court’s lack of time to start the hearing of the case. 9. On 28 September 2017 counsel for the prosecution lodged a change of name notification with the registrar of the District Court of Paphos informing the court that the Paphos Cooperative Savings Bank Ltd had transferred its assets and liabilities to Cooperative Central Bank Ltd, with the relevant agreement coming into force on 1 July 2017. Additionally, counsel for the prosecution explained that the latter company had been renamed as Cyprus Cooperative Bank Ltd as of 24 July 2017. 10. On 6 November 2017 the court again adjourned a hearing of the case for lack of time to deal with it. 11. On 29 March 2018 the case was postponed at the applicant’s request for health-related reasons. 12. On 14 September 2018 counsel for the prosecution lodged a second change of name notification with the registrar of the court informing the court that the name of the prosecution had changed from Cyprus Cooperative Bank Ltd to Cooperative Asset Management Company Ltd as of 3 September 2018. 13. On 24 September 2018 a hearing of the case was postponed due to the absence of a witness for the prosecution. 14. On 15 November 2018 the applicant questioned whether the company could bring the prosecution as a legal entity capable of operating as a credit institution, and as such argued that no counsel could appear or act on its behalf, and that the criminal proceedings could not continue. The prosecution sought an adjournment, which the court granted. It rescheduled the case for a hearing on 15 January 2019. 15. On 15 January 2019 the hearing was adjourned upon the request of both parties to exchange relevant documents for the case. 16. On 26 March 2019 the hearing was adjourned upon the request of both parties to submit to the court a list of facts which were not in dispute between them. 17. On 24 May 2019 the District Court adjourned the hearing; the parties did not object. 18. By letter of 5 September 2019 counsel for the prosecution applied to the Attorney General for the discontinuance of the criminal case, explaining that due to various mergers which the credit institution had undergone, an issue arose as to whether a criminal prosecution could be initiated by a non-existent prosecutor. The issue was being examined by the Supreme Court and a decision had been pending. Counsel for the prosecution further explained that in a different criminal case with similar facts, the court had acquitted the defendant prima facie at the pre‑trial stage. Consequently, counsel for the prosecution considered that the continuation of the criminal case no longer served a purpose and a possible dismissal of the case by the District Court could adversely affect the rights of the credit institution as established after the merger in a future prosecution in relation to the unpaid instalments due from the applicant. 19. On 13 September 2019 the prosecution applied to the court seeking a postponement of the hearing, informing the court of its application to the Attorney General. 20. On 23 September 2019 the Attorney General ordered the discontinuance of the case against the applicant by granting a nolle prosequi. 21. On 2 October 2019 the District Court informed the parties that on account of the Attorney General’s decision the criminal case was to be discontinued and the applicant discharged. 22. The applicant attempted to challenge the said decision by arguing, inter alia, that he had not been consulted by the Attorney General on the matter; that he had raised a similar issue with the court on 15 November 2018 but the case had been subject to multiple adjournments due to the court’s lack of time and the issue had remained open; that he could not submit a claim in respect of the losses and expenses which he had suffered; that he had been treated unfairly as he had been appearing before the court for four and a half years and for the previous two years he had been paying eight euro stamps in connection with his counsel’s appearance in court. 23. The court repeated that the discontinuance of the case constituted an exclusive constitutional power of the Attorney General which was not subject to judicial review and no further judicial discretion could be exercised by the court, either in substance, or in terms of procedure as far as costs were concerned. The case was closed without an order for costs against the applicant. RELEVANT LEGAL FRAMEWORK AND PRACTICE
THE CONSTITUTION of cyprus
24. Article 30 § 2 of the Constitution provides, where relevant, as follows:
“In the determination of ... any criminal charge against him, every person is entitled to a ... hearing within a reasonable time ...”
25. Article 113 § 2 of the Constitution provides:
“The Attorney General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions.”
CRIMINAL PROCEDURE LAW, CAP. 155
26. Section 154(1) provides as follows, in so far as relevant:
“In any criminal proceedings and at any stage thereof before judgment the Attorney General may enter a nolle prosequi, either by stating in Court or informing the Court in writing that the Republic intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered.”
relevant Domestic CASE-LAWCase-law concerning the dismissal of a criminal case on account of the length of proceedings

27. In the case of Efstathiou v. Police (1990) 2 A.A.D. 294 the Supreme Court, on appeal, acquitted a previously convicted defendant on account of the length of the first instance criminal proceedings which it considered to have been excessive. The Supreme Court held that a violation of rights which were safeguarded by Article 30 § 2 of the Constitution rendered the criminal proceedings void in their entirety. 28. In the case of Attorney General v. Menelaou (2004) 2 A.A.D. 223 the Supreme Court, on appeal, noted that criminal proceedings could be discontinued on the ground of a breach of a defendant’s right to a fair trial within a reasonable time in accordance with the Convention, but only when the existence of a fair trial was no longer possible or, for some convincing reason, the continuation of the trial against the defendant would be unfair. It further reiterated that the dismissal of a case was not the only and exclusive remedy available in such situations. Rather, a breach of a defendant’s right to a fair trial might lead to the reduction of the defendant’s sentence at the sentencing hearing. 29. In the private criminal case of Limassol Prefect v. Malai, criminal case no. 13421/20, 1 November 2021, the first instance criminal court decided to dismiss the case and acquit the defendants by reason of a breach of their constitutional right to a fair trial on account of the length of proceedings before the case was heard, while in See You Travel Limited v. Christodoulide, private criminal case no. 1353/16, 25 June 2021, and Christoudias Clearing Co. Ltd v. S.G. Stavrinou Trading Ltd, private criminal case no. 907/18, 26 January 2022, the first instance criminal courts dismissed the cases on account of the excessive length of the proceedings after they had been heard. Case-law on compensation for violations of human rights as submitted by the Government
30. In Takis Yiallouros v. Evgenios Nicolaou ([2001] 1 C.L.R. 558), which concerned an alleged violation by another individual of the claimant’s right to a private life and correspondence, the Supreme Court, sitting as a full bench, held that claims for human rights violations were actionable rights that could be pursued in the civil courts against those responsible, with a view to recovering from them, inter alia, just and reasonable compensation for any damage suffered as a result. The Supreme Court thus confirmed the existence of an obligation to award general damages for breaches of the fundamental human rights and freedoms guaranteed by the Constitution, even when the violation did not constitute a tort in civil law. It pointed out that the provisions of Article 13 of the Convention formed part of the domestic law and safeguarded the right to an effective remedy for a violation of rights guaranteed by the Convention. 31. In Attorney General v. Andriani Palma and others (civil appeal no. 44/2013, 19 November 2015) which concerned the State’s responsibility to conduct an effective investigation into the death of a missing person the Supreme Court held that the State had violated the right to life of the deceased given that no effective investigation had been conducted in relation to his death and burial. With reference to Takis Yiallouros, the Supreme Court acknowledged that the plaintiffs – relatives of the deceased – had been victims of human rights violations and awarded EUR 20,000 to the wife and EUR 10,000 to each of the deceased’s daughters in respect of non-pecuniary damage. 32. In Attorney General v. Vasos Vasileiou as administrator of the estate of the deceased Christofi B. Pashia (civil appeal no. 381/2010, 26 May 2015), the Supreme Court reversed the first instance court’s findings that the State had failed to conduct an effective investigation into the death of the applicants’ relative. As such, the Supreme Court considered that no procedural violation of the right to life had taken place. 33. In the case of Xenofontos and others v. Attorney General (civil action no. 40/2013, 13 December 2018) which concerned the State’s liability for the killing of a civilian due to disproportionate use of force by the police, the District Court noted that the sole cause of action had been the plaintiffs’ right to life enshrined in the Constitution. With reference to Takis Yiallouros and Palma, as well as case-law of this Court, the District Court held that the plaintiffs had been victims of human rights violations, namely Article 2 of the Convention and respectively Article 7 of the Constitution. It awarded each plaintiff EUR 35,000 in respect of non-pecuniary damages because of the said violations. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 and article 13 OF THE CONVENTION
34. The applicant complained that the length of the private criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
35. The applicant further complained that he had not had at his disposal an effective domestic remedy in respect of the alleged violation of Article 6 § 1, in breach of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
36. The period to be taken into consideration began on 2 March 2015 when the private prosecution was brought against the applicant and ended on 2 October 2019 when the District Court dismissed the case. It thus lasted approximately four years and seven months at one level of jurisdiction. AdmissibilityThe parties’ submissions

(a)   The Government
37. The Government argued, first, that the applicant had failed to exhaust domestic remedies as he ought to have raised the substance of his complaint with the domestic courts by way of a preliminary objection. That, according to the Government, might have led to the discontinuance of the case as the Supreme Court of Cyprus had recognised on one previous occasion (see paragraph 27 above) that a breach of the right to a fair trial within a reasonable time rendered the criminal procedure void in its entirety, and had acquitted a previously convicted defendant. According to the Government, even though the courts had adopted a different approach in recent years and had been more reluctant to acquit defendants by reason of a breach of their right to a fair trial pursuant to Article 6 § 1 of the Convention, that possibility remained nonetheless, as confirmed by recent case-law (see paragraphs 28 and 29 above). Instead, the Government submitted, the applicant had argued in vague terms that he had been deprived of his constitutional right to a fair trial; he had merely mentioned in brief that he had been appearing before the District Court for four and a half years, without explaining how that had affected his rights. The Government further pointed out that the complaint concerning the delay had only been raised in a general manner after the Attorney General’s decision to discontinue the criminal case, by which time it was already too late given that the proceedings had already been discontinued and the applicant discharged. 38. The Government argued, second, that the applicant could no longer claim to be a victim of a violation of his right to a fair trial within a reasonable time under Article 6 § 1 of the Convention as the proceedings against him had been discontinued and thus the outcome of the case had been in his favour. In any event, the applicant could not be regarded as having sustained major costs or trouble because the hearing of the criminal case had never commenced; he had only appeared before the District Court on fourteen occasions for formalities in the four and a half years of the proceedings. 39. The Government argued, third, that the applicant had suffered no significant disadvantage as the hearing of the case had not commenced, thus he had sustained no stress or major costs. The applicant had merely appeared before the District Court for various formalities, while the court had neither determined the charges against him, nor imposed a penalty or fine. In addition, the case had not entailed any major question of principle of personal importance to the applicant. Moreover, the offences with which he had been charged entailed a maximum sentence of a fine of up to EUR 5,000, meaning that, unlike in other cases involving serious criminal offences with the possibility of imprisonment, the applicant could not reasonably be considered as having experienced any significant insecurity or uncertainty regarding his fate pending the proceedings. The Government further argued that even if it were to be accepted that the applicant had sustained a loss of a financial nature as regards legal costs and court expenses, those sums had not surpassed EUR 2,000 and could not therefore be regarded as a significant disadvantage. Lastly, the Government noted that the applicant had benefited from the nolle prosequi and his insistence on challenging the said decision had been unreasonable as there had been no guarantee that the outcome of a potential hearing of the case would be in his favour. (b)   The applicant
40. The applicant argued that the fact that the case against him had been dismissed had not deprived him of his victim status. For four and a half years he had sustained humiliation and expenses for which the prosecution should have compensated him. 41. The applicant denied not having exhausted domestic remedies. He claimed that he had had no effective remedy at his disposal and in any event no hearing had taken place during which he could have raised the issue of the delay. On 2 October 2019 his lawyer had explicitly mentioned to the trial court that the proceedings had lasted for four and a half years and applied for legal expenses to be awarded in that regard, but the court had dismissed his claims as it had no jurisdiction to make any award following the Attorney General’s decision. 42. Lastly, the applicant argued that, irrespective of the severity of the offences with which he had been charged, he had been required to appear periodically before the District Court for four and a half years while waiting for his case to be heard and had felt humiliation owing to his being an accused for so long without being afforded a trial or even a chance to challenge the nolle prosequi. He had suffered from frustration and insecurity on account of the excessive length of the proceedings and the absence of an effective remedy in that regard. In addition, the applicant argued that he had suffered an additional financial disadvantage as he had had to pay legal fees each time his lawyer had appeared in court, which had come to a total of EUR 2,421.65, including 19% VAT, and which he had not been able to claim from the prosecution because of the Attorney General’s decision to enter a nolle prosequi.

Outcome for Article 13: violation