FOURTH SECTION
DECISION
Application no. 15619/12
Yiannakis PAPAIOANNOU
against Cyprus
The European Court of Human Rights (Fourth Section), sitting on 15 September 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Faris Vehabović,
Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 8 March 2012,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yiannakis Papaioannou, is a Cypriot national, who was born in 1967 and lives in Frenaros. He was represented before the Court by Mr A. S. Angelides, a lawyer practising in Nicosia.
A. The circumstances of the case
1. The Physical Education Teachers’ Appointment List is used to fill vacancies for physical education teachers in the Cypriot public education system. The procedure for inclusion on the list is defined by section 28B of the Public Educational Service Law of 1969 (“the Law of 1969”) and is as follows.
2. The list is published every February. Those wishing to be included on the list must submit applications by the end of December of the previous year. The Educational Service Committee (“the Committee”) then examines the applications and ranks the candidates on the list.
3. A candidate’s position on the list is determined with reference to various criteria. For first-time candidates, their position is determined first, by the year they obtained their degree and then by other criteria which are set out in section 28B(3) of the Law such as their class of degree, whether they undertook military service, whether they have obtained any additional post-graduate qualifications and so on. For candidates who were already included on the list in previous years, their position on the new list is determined first, by the year they were first included on the list and, thereafter, by the other criteria set out in section 28B(3).
4. The applicant is a holder of a degree in Physical Education. He finished his studies in 1992, having previously deferred those studies in order to complete twenty-six months’ compulsory military service. The same year, he applied for inclusion on the list. His request was accepted by the Committee and he was included in the list for the year 1992. While it appears he did not apply for inclusion on the list every year thereafter, in 2008 he applied for inclusion in the 2009 list.
5. The Committee published its 2009 list on 27 February 2009. The applicant was placed 174th. He then filed a recourse before a single judge of the Supreme Court (revisional jurisdiction) seeking the annulment of the Committee’s decision to place him 174th. He submitted that section 28B of the Law of 1969 was unconstitutional. According to the applicant, by determining ranking on the list by reference to the year an applicant first applied to be on the list, section 28B created indirect discrimination against male candidates. This was because, unlike their female counterparts, male candidates had to complete twenty-six months’ military service prior to applying for registration. The effect of this was to provide a two-year head start in the rankings to women.
6. The Supreme Court at first instance upheld the applicant’s recourse and annulled the Committee’s decision.
7. The Government, on behalf of the Committee, appealed to the Supreme Court (revisional appeal jurisdiction) inter alia on the grounds that the court did not have jurisdiction to entertain the recourse. This was because, in the Government’s submission, the applicant had failed to prove that he was challenging an executory administrative act since he had failed to establish an appropriate comparison between his position and the position of other candidates on the list. Thus, according to the Government, the judgment of the Supreme Court at first instance was based on entirely hypothetical facts. The Government submitted that this was an issue which went to the core of the proceedings.
8. The applicant argued that the matter raised by the Government on appeal had not been raised in the first instance proceedings. In any case the applicant submitted that the Government’s submissions were groundless and should be rejected.
9. On 12 September 2011 the Supreme Court allowed the Government’s appeal. The court found that the applicant’s challenge to the Committee’s decision to rank him 174th on the list was not a valid recourse against an executory administrative act. This was because, by its nature, the Committee’s ranking decision was an act of comparison between candidates: it did not merely affect the position of one person on the list. The court could not annul the applicant’s position on the list without automatically affecting the position of other candidates. In his recourse the applicant should have set out the reasons why he considered the Committee’s decision was wrong and should have done so by a direct comparison with those candidates to whom the better rankings had been given. This would have given the other candidates an opportunity to set out their arguments or objections before the court and be heard, as required by the rules of natural justice. The fault in question went to the core of the recourse and could not be remedied.
10. For this reason, the Supreme Court did not examine the applicant’s complaints that the Law was unconstitutional and discriminatory; a decision on the admissibility of the recourse preceded such substantive issues.
B. Relevant domestic law and practice
1. The Constitution
11. Article 28 of the Constitution prohibits discrimination providing that:
“1. All persons are equal before the law, the administration and justice, and are entitled to equal protection thereof and treatment thereby.
2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.
...”
12. Article 146 of the Constitution states that the Supreme Court has exclusive jurisdiction to:
“(1)...decide on a recourse filed against a decision... of an authority... exercising executive or administrative functions when such a decision is contrary to the constitution or the law or is made in excess or abuse of the powers vested in such body, authority or person.
(2) Such a recourse may be made by a person whose existing legitimate interest ... is adversely and directly affected by such decision, act or omission.
...”
2. Equal Treatment of Men and Women in Employment and Vocational Training Law of 2002
13. Article 8 of the above Law (“the 2002 Law”) where relevant provides:
“(1) Men and women enjoy equal treatment, prohibiting any discrimination on the ground of gender –
(a) In access to employment or to a job opening, permanent or temporary...;
(b) in the definition and implementation of the terms and conditions of employment, including the qualifications and other terms and conditions and placement criteria...”
3. Relevant case-law of the Supreme Court
14. According to case law of the Supreme Court, only “executory administrative acts” can be the subject of a recourse to the Supreme Court under Article 146 of the Constitution (Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391). An executory administrative act is one which, inter alia, grant rights to individuals and creates obligations for the administration (see Ioanna Demetriou v. the Republic [1991] 4 A.A.D. 3029; and Fedias Stefanides and others v. Municipality of Engomi [1994] 3 A.A.D. 49).
15. Issues as to the admissibility of a recourse to the Supreme Court may be considered by the court of its own motion even if these are not raised by the parties (see Protopapas v. Republic [1967] 3 A.A.D. 411).
16. It is well-established that, where there is a dispute between various candidates on a list or where, for example, there is a selection process amongst a number of candidates for a particular post, a candidate wishing to challenge the validity of the administrative body’s preference for one candidate over another, ought not merely to challenge his position on the list or his non-selection, as the case may be, but instead should challenge the position of other people by indicating which candidates in his opinion lacked in qualifications or were unjustifiably favoured in comparison to him. All the other candidates whose positions are affected should be given the opportunity as interested parties to set out their case and objections before the court. Since the administrative authority’s decision affects a number of candidates, it means that the entirety of the decision should be challenged as that is what constitutes the executory administrative act. The part of the decision affecting solely the applicant cannot be considered an autonomous executory act, as that is only one link in the entire chain of considerations which the administrative body makes in order to form the final decision (see, among other authorities, Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391; Georgios Koukkoulis v. Minister of Defence, no. 1224/2008, judgment of 11 October 2010, unreported; Costas Neophytou and Ioannis Ioannou v. Ministry of Defence [2007] 4 A.A.D. 602; Nayias Petousi v. Committee of State Scholarships and others, no. 1309/99, judgment of 27 November 2000, unreported).
COMPLAINTS
17. The applicant’s complaints fell under three headings.
18. First, he complained that, in examining the case in the way it did, the Supreme Court failed properly to consider his recourse, which had only been directed at the Committee’s decision to place him 174th on the list. The Supreme Court considered questions as to the admissibility of the recourse which had not been raised in the first instance proceedings. According to the applicant, this infringed both his right of access to court and his right to a fair trial under Article 6 of the Convention.
19. Second, the applicant complained that section 28B of the Law of 1969 indirectly discriminated between male and female candidates. It was therefore contrary to Article 14 taken in conjunction with Articles 6 and 13 of the Convention and Article 1 of Protocol No.1. In respect of Article 1 of Protocol No. 1, the applicant submitted that placing him on 174th on the list affected his rights under Article 1 of Protocol No. 1 on the basis that this delayed his appointment and consequently his remuneration and prospects for promotion in the event that he is offered a position as a physical education teacher. In the alternative, the applicant also complained that section 28B was contrary to Article 1 of Protocol No. 12.
20. Finally, the applicant also alleged that, as a result of the Supreme Court’s judgment, he was deprived of an effective remedy in violation of Article 13 of the Convention.
THE LAW
A. Article 6
21. Article 6, where relevant, provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”
22. The applicant’s complaints are first, that the Supreme Court, in dismissing his recourse because it was not properly formulated, deprived him of his right of access to court and second, that it also deprived him of his right to a fair trial. To the extent that these are separate complaints, the Court finds as follows.
23. As regards the former, the alleged lack of access to court, the Court considers that the applicant had access to the Supreme Court, both at first instance and on appeal; it was his own failure to comply with the need to challenge the Committee’s ranking decision in the proper manner which led to his recourse being rejected. From the case-law of the Supreme Court set out at paragraphs 14–16 above, it should have been clear to the applicant first, that he was required to demonstrate that the Commission’s ranking decision was an executory administrative act and, second, that his recourse had to challenge not just his position on the list but also the position of other candidates, giving reasons why they should not have received a higher ranking than him. It was not possible to examine the matter if it was not expressly set out in the recourse. The Supreme Court applied its settled case-law to the case before it. Its approach was entirely foreseeable, as it was required to be (see Levages Prestations Services v. France, 23 October 1996, § 42, Reports of Judgments and Decisions 1996‑V). There is, therefore, nothing in the Supreme Court’s judgment which has hindered the applicant’s right of access to court.
24. As regards the latter complaint, the alleged breach of the right to a fair trial, the Court observes that, in both their written and oral submissions before the Supreme Court, the Government made specific mention of the issue concerning the inadmissibility of the recourse. The applicant was also given the opportunity to present his arguments on the issue both orally and in writing. The Supreme Court thus heard full adversarial argument on the issue and, applying its well-established case law, allowed the Government’s appeal. The Court therefore considers that the Supreme Court proceedings were entirely fair.
25. It follows that the applicant’s complaints under Article 6 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
B. Article 14 taken in conjunction with Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1
26. The Court must first determine whether, in respect of these complaints, the applicant has complied with the admissibility requirements in Article 35 § 1 of the Convention, which stipulates:
“The Court 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.”
27. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, as a recent authority, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 115, ECHR 2015; and also Vučković and Others v. Serbia, no. 17153/11 and 29 other cases, §§ 69 –70, 28 August 2012).
28. The Court also recalls that, while Article 35 § 1 of the Convention must be applied with some degree of flexibility it requires more than merely submitting an application to the appropriate domestic courts and making use of the available effective remedies. It normally also requires compliance with the procedural requirements and time-limits laid down in domestic law. Consequently, Article 35 § 1 is considered not to be complied with when an appeal is not accepted for examination because of a procedural mistake by the applicant (see, Gäfgen v. Germany [GC], no. 22978/05, §§ 142 and 143, ECHR 2010, with further references therein, and, as recent authorities, Carpelan v. Sweden (dec.), no. 51454/11, 21 April 2015 and Buechel v. Switzerland (dec.), no. 6830/08, 9 December 2014).
29. Turning to the present case, as the Court has found (see paragraph 23 above), the reason the Supreme Court rejected the applicant’s recourse was that, applying its settled case-law, it found that the recourse had not set out an essential issue.
30. This was, in the Court’s view, a failure by the applicant to comply with clear, well-established and foreseeable rules for the lodging of a valid administrative recourse. It was this failure which prevented the Supreme Court from considering the merits of the applicant’s discrimination complaints.
31. Therefore, in respect of his complaints as to the alleged discriminatory nature of section 28B, the Court finds that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Accordingly, this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Article 13
32. Article 13 of the Convention provides:
“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.”
33. Given that the applicant’s substantive complaints have been rejected either because they are manifestly ill-founded or for non-exhaustion of domestic remedies, it follows that the applicant does not have an “arguable claim” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 24 April 1988, § 52, Series A no. 131). This complaint must therefore be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 8 October 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy