AS TO THE ADMISSIBILITY OF
Application No. 25469/94
by Michael THRASSOU, Demetris THEODOROU,
Christos SOPHOCLEOUS, Michael FIAKAS and
Andreas CONSTANTINOU
against Cyprus
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
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 18 April 1994 by
Michael THRASSOU, Demetris THEODOROU, Christos SOPHOCLEOUS, Michael
FIAKAS and Andreas CONSTANTINOU against Cyprus and registered on
24 October 1994 under file No. 25469/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
2 May 1995 and the observations in reply submitted by the
applicants on 19 June and 27 November 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Cypriot citizens, born in 1945, 1941, 1944,
1950 and 1954 respectively. They are architects and reside in Larnaca
and Nicosia (Cyprus). Before the Commission they are represented by Mr.
Christos Clerides, an attorney-at-law practising in Nicosia.
The facts of the case as submitted by the parties may be
summarised as follows.
The applicants hold academic degrees in architecture issued by
the Pacific University of California (U.S.A.).
On 8 February 1988, the applicants applied to the Council of
Registration of Architects and Civil Engineers (Symvoulio Engrafis
Architektonon ke Politikon Michanikon) for enrolment on the list of
architects, in order to be able to practise in Cyprus. They relied on
decision No. 41/88 by which the Council of Ministers had recognised
their degrees in architecture.
On 9 December 1988, by decision No. 303/88, the Council of
Ministers annulled decision No. 41/88.
Following this, the Council of Registration failed to enrol the
applicants in the list of architects. The applicants then filed a
recourse for annulment of the Council's omission and/or tacit refusal
before the Supreme Court of Cyprus.
On 20 January 1990 the Supreme Court declared null and void the
omission and/or the tacit refusal of the Council of Registration. The
Court stressed that the applicants' request should have been examined
according to the law in force on the day of its introduction and
ordered the Council of Registration to implement the provisions of
decision No. 41/88 and register the applicants as architects. The
Council of Registration lodged an appeal against this judgment.
On 8 October 1990 the Supreme Court rejected the Council's
appeal.
On 12 July 1991 the Council of Ministers published a new decision
No. 197/91 which repealed retrospectively decision No. 41/88.
Following this, the Council of Registration refused to register
the applicants as architects, on the ground that decision No. 41/88 had
never been in force. The applicants referred their cases again to the
Supreme Court.
On 10 November 1993 the Supreme Court decided that decision
No. 197/91 could not have retrospective effect and that, in any event,
it could not affect its judgment of 20 January 1990. The Council of
Registration lodged an appeal against this decision.
On 13 September 1994, the Supreme Court rejected the Council's
appeal and upheld its judgment of 20 January 1990, by virtue of which
the Council of registration was obliged to register the applicants as
architects.
On 5 October 1994 the Council of Registration of Architects and
Civil Engineers registered the applicants as architects
retrospectively, on the basis of the legal situation existing in 1988.
Against the above-mentioned decision, sixteen members of the
Association of Architects and Civil Engineers filed recourse
No. 1056/94 which was fixed for hearing before a judge of the Supreme
Court of Cyprus on 13 September 1995.
On 17 March 1995 the Cyprus Scientific Technical Chamber accepted
the applicants as members and issued to them the relevant licences.
Actions Nos. 1439/90, 4969/91 and 5021/91 were filed by the
applicants before the District Court of Nicosia. By means of such civil
actions the applicants are seeking, amongst others, general damages for
excess of the powers of the members of the Council of Registration of
Architects and Civil Engineers. These actions were fixed for hearing
on 14 June 1995.
The Council of Registration of Architects and Civil Engineers has
also filed before the District Court of Nicosia a civil action
No. 2717/88 against the Attorney General of the Republic of Cyprus,
seeking a declaration that notification No. 41/88, by virtue of which
the applicants' academic qualifications were recognised in order to be
able to practise their profession in Cyprus, is null and void. The
hearing was fixed on 15 May 1995.
On 27 November 1995 the applicants' counsel informed the
Commission that all civil actions introduced by or against the
applicants are still pending.
COMPLAINTS
1. The applicants complain that the lingering refusal of the Council
of Registration of Architects and Civil Engineers to abide by the
Supreme Court's judgment of 20 January 1990, ordering their
registration as architects, amounted to a violation of their right to
have their civil rights and obligations effectively determined by a
court in accordance with Articles 6 para. 1 and 13 of the Convention.
2. The applicants further complain that the lingering refusal of the
Cypriot authorities to register them as architects was discriminatory
and amounted to a violation of their right to a peaceful enjoyment of
their possessions in breach of Articles 1 of Protocol No. 1 and 14 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 April 1994 and registered
on 24 October 1994.
On 22 February 1995, the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
2 May 1995. The applicants replied on 19 June and 27 November 1995.
THE LAW
1. The applicants complain that the lingering refusal of the Council
of Registration of Architects and Civil Engineers to abide by the
Supreme Court's judgment of 20 January 1990, ordering their
registration as architects, amounted to a violation of their right to
have their civil rights and obligations effectively determined by a
court in accordance with Articles 6 para. 1 and 13 (Art. 6-1, 13) of
the Convention. Furthermore, the applicants stress that the Council of
Registration of Architects and Civil Engineers refused for many years
to abide by the Supreme Court's judgments and that even today it
reserves its right to continue its action to declare null and void
their registration as architects.
The Commission first notes that it can be argued that Article 6
para. 1 (Art. 6-1) of the Convention applies to the examination of the
above complaint, as the dispute between the applicants and the Council
of Registration of Architects and Civil Engineers concerned their civil
rights (see, Eur. Court H.R., Kraska v. Switzerland judgment of
19 April 1993, Series A no. 254-B, p. 48, para. 25).
Assuming that Article 6 (Art. 6) applies, the Commission must
then determine whether, regarding their above complaint, the applicants
can still claim to be victims of a violation of the Convention within
the meaning of Article 25 (Art. 25).
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission may only "receive petitions ... from any person ... claiming
to be a victim of the rights set forth in the Convention".
In the present case the Commission notes that on 5 October 1994
the Council of Registration of Architects and Civil Engineers
registered the applicants as architects retrospectively, on the basis
of the legal situation existing in 1988.
Consequently, regarding their above complaint, the applicants can
no longer claim to be victims of a violation of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants further complain that the lingering refusal of the
Cypriot authorities to register them as architects was discriminatory
and amounted to a violation of their right to a peaceful enjoyment of
their possessions in breach of Articles 1 of Protocol No. 1 and 14
(P1-1, Art. 14) of the Convention.
The Government submit that the applicants have not exhausted
domestic remedies. Alternatively, it is contended that the application
is manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicants argue that they have exhausted all domestic
remedies.
The Commission first observes that, given the lingering refusal
of the Cypriot authorities to register them as architects, the
applicants may have suffered economic loss. Therefore, they can still
claim to be victims of a breach of Articles 1 of Protocol No. 1 and 14
(P1-1, Art. 14) of the Convention. However this part of the application
must be declared inadmissible for the following reasons:
The Commission recalls its case-law according to which it falls
first to the national authorities to redress any alleged violation of
the Convention. As in many cases the violation itself can no longer be
wiped out with retroactive effect, only reparation will be possible.
Such reparation may then constitute a means whereby a State can redress
the alleged violation of the Convention (No. 10668/83, Dec. 13.5.87,
D.R. 52, p. 177).
In the present case, the Commission notes that following the
Supreme Court's judgment of 20 January 1990, the applicants introduced
several civil actions in order to obtain compensation for economic
losses and inconveniences which were caused by the lingering refusal
of the Council of Registration of Architects and Civil Engineers to
register them as architects. These actions are still pending.
The Commission recalls in this respect that under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted. The exhaustion of domestic
remedies rule requires the exhaustion of those remedies that are
available and sufficient. To be effective, a remedy must be capable of
remedying directly the situation complained of (No. 11660/85, Dec.
19.1.89, D.R. 59, p. 85).
The Commission must therefore consider whether the compensation
that may be awarded to the applicants by the domestic courts could have
the effect of remedying the alleged violations.
In this respect the Commission emphasises that the possibility
of obtaining compensation may in some circumstances constitute an
adequate remedy, in particular where it is a question of the only
possible or practical means whereby redress can be given to the
individual for the wrong he has suffered (No. 18598/91, Dec. 18.5.94,
D.R. 78-B, p. 71).
In the present case the Commission observes that the damages
which may be awarded to the applicants could consist of a substantial
sum by way of compensation and would therefore have the effect of
redressing the alleged violations.
The Commission therefore finds that the applicants have not yet
given the Cypriot courts the opportunity which is in principle intended
to be afforded to Contracting States by Article 26 (Art. 26), namely
the opportunity of preventing or redressing the violations alleged
against them (cf., inter alia, Eur. Court H.R., Cardot judgment of
19 March 1991, Series A no. 200, p. 17, para. 32 et seq.).
It follows that this part of the application must be rejected in
accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) 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)
Full & Egal Universal Law Academy