AS TO THE ADMISSIBILITY OF
Application No. 28130/95
by Lefkos P. GEORGIADES
against Cyprus
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 19 May 1995 by
Lefkos P. GEORGIADES against Cyprus and registered on 4 August 1995
under file No. 28130/95;
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 applicant is a Cypriot citizen. He was born in 1919 in Cyprus
and is currently resident in Nicosia.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
Between November 1941 and September 1953 the applicant worked for
the British Colonial Government in Cyprus. Between September 1953 and
1960 he worked for the United Nations. Between 1961 and 1963 he worked
as a civil servant for the Republic of Cyprus. In 1963 he was appointed
ambassador. He retired in 1979.
In 1979 the applicant applied to the Council of Ministers for a
pension in respect of his years of service with the colonial
Government. On 31 May 1979 the Council of Ministers rejected his
request.
The applicant challenged the relevant decision before the Supreme
Court of Justice, which rejected his recourse on the ground that the
applicant had accepted the conditions of his appointment in 1961 and
1963 without claiming recognition of his previous service. As a result,
he had no longer interest to sue. The court further considered that a
promise allegedly made to the applicant by the then President of Cyprus
that his previous years of service would be recognised had no legal
effect.
On 10 May 1990 and 31 May 1990 the applicant re-applied to the
Council of Ministers claiming equality of treatment with certain
individuals to whom the Council of Ministers had granted pensions in
respect of their years of service with the colonial government,
notwithstanding the fact that they had subsequently joined
international organisations, on the basis that their appointment in
those organisations was in the public interest. On 7 July 1990 the
applicant challenged before the Supreme Court the failure of the
Council of Ministers to examine his request.
On 25 August 1990 the applicant received a reply from the
Ministry of Finance, which rejected his request referring him to the
1979 decision of the Council of Ministers.
On 15 December 1990 a single judge of the Supreme Court rejected
the applicant's recourse. The judge considered that it was clear that
the applicant's recourse was not directed against the decision of
25 August 1990 of the Ministry of Finance. Insofar as the recourse was
directed against the failure of the Council of Ministers to reply to
the applicant's request, the court considered that there was no such
failure, since the applicant had in the meantime received a reply from
the Ministry of Finance. As for the rest, the court considered that the
applicant's complaints had been answered by the previous decision of
the Supreme Court.
On 29 December 1990 the applicant appealed to the Supreme Court
sitting in plenary. The latter rejected his appeal on 31 March 1995.
The court considered that it was within the discretionary powers of the
Council of Ministers to accept or reject the applicant's request for
a pension. Under Cypriot law one could not challenge the failure of an
authority to exercise a discretionary power. Only when the authority
exercises the discretion and takes a decision can the decision be
challenged. In this case the Council of Ministers failed to exercise
discretionary powers. As a result, the failure of the Council of
Ministers to reply to the applicant's request for a pension could not
be challenged before the Supreme Court. The action had to be rejected
ab limine, as there was no basis for the Supreme Court to exercise its
jurisdiction.
COMPLAINTS
1. The applicant complains under Article 1 of Protocol No. 1 of a
violation of his right to receive a pension for his years of service
with the colonial Government.
2. He also complains under Article 6 of the Convention of the
failure of the Supreme Court in 1995 to take into consideration all the
issues presented to it and of the length of the second set of
proceedings.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that he was not granted a pension for his years of service with
the colonial Government.
The Commission does not consider it necessary to examine whether
the applicant could claim any "property rights" within the meaning of
Article 1 of Protocol No. 1 (P1-1), because it considers that the
applicant has not complied with the requirements of Article 26
(Art. 26) of the Convention.
Article 26 (Art. 26) of the Convention provides as follows:
"The Commission may only deal with the matter after all
domestic remedies have been exhausted, according to the
generally recognised rules of international law, and within
a period of six months from the date on which the final
decision was taken."
The Commission notes that the applicant's second request for a
pension was rejected by a decision of the Ministry of Finance on
25 August 1990. The applicant did not challenge this decision before
the Supreme Court, as he was entitled to under domestic law. As a
result, even if it were assumed that the applicant's second request for
a pension was not essentially the same as that which had been rejected
in 1979, the complaint is inadmissible, because the applicant failed
to exhaust domestic remedies under Article 26 (Art. 26) of the
Convention.
This part of the application must be, therefore, rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant complains under Article 6 (Art. 6) of the
Convention of the length of the proceedings he instituted before the
Supreme Court in 1990 and of the failure of the Supreme Court to take
into consideration all the issues presented to it in these proceedings.
Article 6 para. 1 (Art. 6-1) of the Convention of the Convention
provides as follows:
"In the determination of his civil rights and obligations ......,
everyone is entitled to a fair .... hearing within a reasonable
time ......"
The Commission recalls that, in accordance with its case-law, a
tribunal which rejects a claim on procedural grounds is not determining
a dispute on civil rights and obligations (No. 10865/84, Dec. 12.5.86,
D.R. 47 p. 188). It notes that the Supreme Court rejected ab limine the
applicant's recourse in 1995 finding no basis for exercising its
jurisdiction, since the failure of the Council of Ministers to reply
to the applicant's request for a pension could not be challenged before
the Supreme Court. The Commission, therefore, concludes that the
Supreme Court did not determine a dispute on civil rights and
obligations and that the proceedings complained of fall outside the
scope of Article 6 (Art. 6) of the Convention.
It follows that the Commission has no competence ratione materiae
to examine this part of the application which must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) as being incompatible
with the provisions of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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