Published on 20 March 2023
THIRD SECTION
Application no. 45899/20
Konstantinos LAZOURAS and Panagiotis PANAGIOTOU
against Cyprus
lodged on 6 October 2020
communicated on 28 February 2023
SUBJECT MATTER OF THE CASE
The applicants are employees or pensioners of the public sector. The applications concern the deduction of a tiered percentage monthly from their gross salaries and pensions based on the Law on the Reduction in Emoluments and Pensions of Officials, Employees and Pensioners of the Public Service and of the broader Public Sector of 2012 (Law no. 168(I)/2012).
The applicants filed recourses to challenge their salary and pension deductions arguing, inter alia, that Law 168(I)/2012 had been unconstitutional, as it placed a restriction on their right to property on grounds that had not been permissible under Article 23 of the Constitution. They supported their arguments by reference, inter alia, to the findings of the majority of the Supreme Court in the case of Maria Koutselini-Ioannidou v. The Republic of Cyprus, no. 740/2011 and others, (2014) 3 A.A.D. 361 (plenary judgment of 7 October 2014). In that case the Supreme Court held, among others, that the suspension of pensions while public servants held another public position by virtue of Law 88(I)/2011 breached Article 23 of the Constitution, which had provided greater protection than Article 1 of Protocol No. 1. The court based its finding on the fact that paragraph 3 of Article 23 of the Constitution had not included public interest or public benefit as a justification for limiting the right to property. Consequently, the court held that the suspension of pensions had been unconstitutional as it constituted a restriction to the right to property on grounds that had not been permitted by paragraph 3 of Article 23 of the Constitution.
Following, inter alia, the above case-law, the Administrative Court allowed the applicants’ recourses and held, by majority, that Law 168(I)/2012 had been unconstitutional.
On 10 April 2020 the plenary of the Supreme Court (appellate jurisdiction) allowed the appeals lodged by the Government, and held that Law 168(I)/2012 had been constitutional, adopting the reasoning of the majority in the earlier case of George Charalambous and others v. The Republic of Cyprus, case no. 1480/2011 and others (2014) 3 A.A.D. 175 (plenary judgment of 9 December 2011). In that case the court had stated that the deduction of special contribution from the salaries and pensions of the applicants by virtue of Law 112(I)/2011 could not be justified by reasons of public benefit under paragraph 3 of Article 23 of the Constitution. Nonetheless, the court held that the relatively small reduction of the salaries had not affected the core of the right to receive a salary, which had remained intact and had not been rendered devoid. As a result, according to the court, the reduction had not constituted a deprivation or restriction, outside the parameters of Article 23.
The applicants complain under Article 6 § 1 of the Convention that the principle of legal certainty had been breached as the Supreme Court in its 2020 judgment failed to follow established case-law, namely, Maria Koutselini-Ioannidou v. The Republic of Cyprus, no. 740/2011 and others, (2014) 3 A.A.D. 361 (plenary judgment of 7 October 2014). The applicants further complain under Article 1 of Protocol No. 1 about the quality of Law 168(I)/2012 which they allege had not been foreseeable as it lacked explanations as to the necessity of its enactment, that the deprivation of part of their salary and/or pension had not had sufficient basis in the law as Article 23 of the Constitution did not allow for such restrictions, and that the impugned measures constituted an unjustified and arbitrary interference with their right to property under Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, having regard to the applicants’ complaint, was the principle of legal certainty complied with by the domestic courts (see for instance, Albu and Others v. Romania, nos. 34796/09 and 63 others, 10 May 2012)?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, on account of the measures adopted by Law no. 168(I)/2012? If so, was the interference in accordance with domestic law, bearing also in mind that the protection of the right to property under Article 23 of the Constitution is wider than that provided for by Article 1 of Protocol No. 1? In addition, did the applicable domestic law meet the requirement of legal certainty and foreseeability? Did the interference pursue a legitimate aim and was it necessary in a democratic society?