AS TO THE ADMISSIBILITY OF
Application No. 25502/94
by Andreas ADAMIDES and 57 others
against Cyprus
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 July 1994 by
Andreas ADAMIDES and 57 others against Cyprus and registered on
27 October 1994 under file No. 25502/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The 58 applicants (see attached list) are Cypriot citizens
residing in Cyprus (applicant No. 46 resides in Rhodes, Greece). They
are active or retired members of the Public Service, the Education
Service, the Cyprus army and the Police Force of Cyprus. Before the
Commission they are represented by Professor Prodromos Dagtoglou and
Mr. Georgios Mavros, attorneys-at-law practising in Athens.
The facts of the case as submitted by the applicants may be
summarised as follows.
1. Particular circumstances of the case
On 20 September 1979 and 31 January 1980, the Council of
Ministers of Cyprus decided to terminate as from the following day the
employment of sixty-two members of the Public Service, the Education
Service, the Cyprus army and the Police Force of Cyprus (hereinafter
called the "Sixty-Two"), among whom the applicants, on the ground that
they had been involved in the activities relating to the coup d'état
of 15 July 1974.
In the subsequent years the Supreme Court of Cyprus had twice the
opportunity to examine the question as to whether the Council of
Ministers had the authority to terminate the services of public
officers:
i. On 4 November 1983, in its judgment Christodoulides and others
v. Cyprus, the Court held that "the Council of Ministers was, in any
case, duly empowered to terminate the services of each one of the
applicants in these cases by virtue, in any event, of section 5 of Law
No. 57/78".
ii. On 10 April 1990, in its judgment Papageorgiou v. Cyprus, the
Court held that the Council of Ministers had no authority under the
Constitution to terminate the services of public officers. In
particular, the Court held that the dismissal of Mr. Papageorgiou,
based on Article 7 of Pension Law, was not legally founded and that
Article 54 of the Constitution, vesting the Council of Ministers with
residual power, does not in any case empower the latter to terminate
the services of public officers.
On 22 April 1993 the Council of Ministers took account of the
judgment of the Supreme Court of 10 April 1990 and recognised that, as
a result, "a question of moral and legal order indubitably arises
concerning the decisions terminating the services of the Sixty-Two" and
that "the restoration of the impaired legal order is considered to be
imperative and an act of justice". The decision also quoted the
Attorney General of the Republic expressing the view that "the present
Council of Ministers is entitled to address this subject again" and
that "the moral obligation of the Government, owing to the
aforementioned more recent case law of the Supreme Court, constitutes
the safest reasoning for such reconsideration". As a result, the
Council of Ministers decided to "revoke as from today for reasons of
public interest" the decisions of 20 September 1979 and
31 January 1980.
This decision was neither published nor notified to the persons
concerned. It was only quoted in a press release of the same day which,
however, did not include the phrase "as from today".
By resolution of 13 May 1993 the House of Representatives called
on the Government to repeal its decision concerning the reinstatement
of the Sixty-Two. The President of the Republic, acting under Article
140 of the Constitution, referred to the Supreme Court for its opinion
the question as to whether such resolution is repugnant to or
inconsistent with the Constitution.
On 28 February 1994 the Supreme Court held that Article 140 of
the Constitution provides for the reference of a "law or decision", and
the aforementioned resolution of the House of Representatives was
neither. It followed that it could not be referred to the Court because
the President of Republic was not under Article 52 of the Constitution
obliged to promulgate it.
On 6 October 1993 the Secretary to the Council of Ministers
notified the lawyers of the Sixty-Two that their clients were entitled
to resume their duties in the position that they held when their
services were terminated.
On 4 November 1993 the House of Representatives passed four laws,
three of which provided that, in case of reinstatement of public
officers dismissed under laws issued between 1977 and 1988, the period
of time the public officer was not in service could not be taken into
account for his benefit (promotion, salary or pension increase). The
fourth law prohibited the appointment or reappointment in the public
service of any of the aforementioned public officers. The President of
the Republic referred to the Supreme Court for its opinion as to
whether the aforementioned laws were repugnant to or inconsistent with
any article of the Constitution or the principle of separation of
powers. On 10 March 1994 the Supreme Court held that the three first
laws were not unconstitutional whereas the fourth was.
On 17 January 1994 the House of Representatives passed the 1994
Budget Law including provisions restricting public expenditure in
respect of persons dismissed under the laws of 1979 and 1980, namely
the Sixty-Two. Again the President of the Republic referred to the
Supreme Court for its opinion as to whether the aforementioned
provisions of the budget law were repugnant to or inconsistent with the
Constitution.
On 28 February 1994 the Court held that the disputed provisions
were unconstitutional and contravened the principle of separation of
powers and that therefore they could not be promulgated.
COMPLAINTS
The applicants complain that their reinstatement was ordered only
for the future and has no retroactive effect whatsoever. In this
respect they stress that they were deprived in a discriminatory way of
their possessions, namely of the remuneration they would have earned
in the fourteen years they were compulsorily prevented from providing
their services, and also of the promotions and salary and pension
increases which the passage of these fourteen years would have brought
for them. The applicants invoke Articles 14 of the Convention and 1 of
Protocol No. 1. The applicants also invoke Article 6 and,
alternatively, Article 13 of the Convention and allege that they did
not have a fair and public hearing in the determination of their civil
rights and, alternatively, that they have no effective remedy against
the decision of the Council of Ministers.
THE LAW
The applicants complain that their reinstatement was ordered only
for the future and has no retroactive effect whatsoever. In this
respect they stress that they were deprived in a discriminatory way of
their possessions, namely of the remuneration they would have earned
in the fourteen years they were compulsorily prevented from providing
their services, and also of the promotions and salary and pension
increases which the passage of these fourteen years would have brought
for them. The applicants invoke Articles 14 (Art. 14) of the Convention
and 1 of Protocol No. 1 (P1-1). The applicants also invoke Article 6
(Art. 6) and, alternatively, Article 13 (Art. 13) of the Convention and
allege that they did not have a fair and public hearing in the
determination of their civil rights and, alternatively, that they have
no effective remedy against the decision of the Council of Ministers.
The Commission first notes that it is doubtful whether the six
months period has been respected in this case since the disputed
decision was taken on 22 April 1993 and the application was introduced
on 15 July 1994. In this respect, the applicants allege that they
consider as final decisions in their case the two opinions of the
Supreme Court of 28 February and 10 March 1994, as to the
constitutionality of the five laws issued in relation with the disputed
decision, and therefore claim to have introduced their application in
time.
Even assuming that the applicants have introduced their
application in time, the Commission finds that the application must be
declared inadmissible for the following reasons:
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
In the present case the Commission notes that the applicants have
not made any recourse to the appropriate courts challenging the non-
retroactive effect of the decision ordering their reinstatement.
In this respect, the applicants allege that the disputed decision
has never been officially published and that the press release did not
include the disputed phrase "as from today". Therefore, the applicants
consider that this decision never came to their knowledge and that they
can still challenge it before the Supreme Court, but they also consider
such a recourse to be meaningless and purposeless.
The Commission cannot accept the applicants' argument that the
disputed decision has still not come to their knowledge. Moreover the
Commission recalls that, according to its constant case-law, the mere
existence of doubts as to the prospects of success does not absolve an
applicant from exhausting a given remedy (see, inter alia, N° 12268/86,
Dec. 7.9.88, D.R. 57 p. 136).
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and that their
complaints must be rejected under Articles 26 and 27 para. 3
(Art. 26, 27-3) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
ANNEX
LIST OF APPLICANTS
1. Andreas ADAMIDES, 2. Andreas ANTONIADES, 3. Pambos ANTONIOU, 4.
Christodoulos ARGYROU, 5. Savvas AYIOMAMITIS, 6. Andreas CHARALAMBOUS,
7. Petros CHRISTODOULIDES, 8. Christodoulos CHRISTODOULOU, 9. Neophytos
CHRISTOU, 10. Kyriacos DAMIANOU, 11. John FAKAS, 12. Orthodoxos
GEORGIADES, 13. Loukas GEORGIOU, 14. Michalakis GEORGIOU, 15. Soteroula
and Charalambos HADJICHARALAMBOUS, heirs of Nicolaos Hadjicharalambous,
16. Soteris HADJIDEMETRIOU, 17. Georges HADJIKOSTI, 18. Loucas
HADJILOUCAS, 19. Costas HINTIKOS, 20. Agathocles IOANNIDES, 21. Iakovos
KAISERLIDES, 22. Alexandros KIAYIAS, 23. Costas KAMBIS, 24. Andonis
KARATZIAS, 25. Ioannis KASSINIS, 26. Eraclis KOINAS, 27. Constantinos
KOMBOS, 28. Kyriakos KONTOVOURKIS, 29. Argyros KYRIAKOU, 30.
Constantinos LAFAZANIS, 31. Yangos LAMBROU, 32. Andreas LEONIDOU, 33.
Andreas MAKRIDES, 34. Elias MAKRIDES, 35. Andreas MARINOU, 36. Symeon
MATSOUKIS, 37. Alexandros MAVROMMATIS, 38. Nicos NEOKLEOUS, 39.
Nikolaos NICOLETTIS, 40. Costas PAPADOPOULOS, 41. Antonis
PAPAEVRIPIDES, 42. Georgios PAPAKOSTAS, 43. Demetrios PAPAPETROU, 44.
Panayotis PAPASAVVAS, 45. Andreas PARPERIS, 46. Doros PIERIDES, 47.
Kyriakos PIKOLOS, 48. Georges POLYCARPOU, 49. Andreas RIGHAS, 50.
Michael SAOUROS, 51. Andreas SERGHIOU, 52. Byron SOCRATOUS, 53. Marios
STAVRIDES, 54. Agathagelos THEMISTOCLEOUS, 55. Christodoulos
THEOCHARIDES, 56. Kyriakos TSOKKAS, 57. Christodoulos YIANNAKIS, 58.
Efthymios VASSILIOU.
Full & Egal Universal Law Academy