ADAMIDES A 57 OTHERS proti Kypru



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.