Pensions
II. RELEVANT DOMESTIC LAW AND PRACTICE 21. At the material time, the relevant parts of section 79 of the Public Service Law ( no. 33/67 ) read as follows: “1. In accordance with the present Law, the following disciplinary penalties may be imposed: ... (a) reprimand (b) severe reprimand (c) disciplinary transfer (d) interruption of annual salary increase (e) suspension of annual salary increase (f) pecuniary penalty which cannot exceed three months'salary (g) reduction in the salary scales (h) reduction to the ranks (i) compulsory retirement (j) dismissal. ... 7. Dismissal entails the loss of all retirement benefits.” 22. A revised version of section 79(7) of the Law is now in force in Cyprus and provides as follows: “Dismissal entails the loss of all retirement benefits. It is understood that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and which will be calculated on the basis of his actual years of service.” 23. Under the provisions of the Public Service Law, the duties and responsibilities for posts in the public service are set out in the relevant “ schemes of service”, approved by the Council of Ministers. According to the scheme of service for the post of Governor of the Department of Co-operative Development held by the applicant, the duties and responsibilities were as follows: “Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the Co-operative Movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Adviser to the Minister of Finance on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties which may be assigned to him.” 24. A public servant's entitlement to a pension is governed by the Republic's Pensions Law, Chapter 311. Section 6 of this Law, which was in force at the time of the applicant's dismissal, provided that no pension, gratuity or other allowance shall be granted except upon retirement from the public service in one of the cases specifically enumerated. Section 6(f) referred to “the case of termination of employment in the public interest as provided in this Law”, that is section 7 of the Law, which in turn provided as follows: “Where an officer's service is terminated by the Council of Ministers on the ground that, having regard to the conditions of the public service, the usefulness of the officer thereto and all the other circumstances of the case, such termination is desirable in the public interest, and a pension, gratuity or other allowance cannot otherwise be granted to him under the provisions of this Law, the Council of Ministers may, if they think fit, grant such pension, gratuity or other allowance as they think just and proper, not exceeding in amount that for which the officer would be eligible if he retired from the public service in the circumstances described in paragraph (e) of section 6 of this Law.” 25. Until 1967, section 5(1) of Chapter 311 provided as follows: “No officer shall have an absolute right to compensation for past services or to pension, gratuity or other allowance; nor shall anything in this Law affect the right of the Crown to dismiss any other officer at any time and without compensation.” This section was repealed by Law no. 9/1967, which came into force on 1 April 1967. Furthermore, section 3(1) of the same Law, which read: “Pensions, gratuities and other allowances may be granted by the Governor in accordance with the regulations contained in the Schedule to this Law to Officers who have been in the service under the Government of Cyprus ... ” was amended by Law no. 9/1967 by replacing the word “may” with the word “shall”. Regulation 4, issued under Chapter 311, which provided: “Subject to the provisions of the Law and of these Regulations, every officer holding a pensionable office under the Government of Cyprus, who has been in the service under the Government of Cyprus in a civil capacity for ten years or more, may be granted on retirement a pension at the annual rate of one six-hundredth of his pensionable emoluments for each complete month of his pensionable service.” was also amended by Law no. 9/1967 by replacing the word “may” with the word “shall”. 26. Article 166 § 1 of the Constitution reads as follows: “There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law (a) all pensions and gratuities for which the Republic is liable ...” 27. Article 169 § 3 of the Constitution reads as follows: “Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.” 28. The relevant parts of Article 23 of the Constitution read as follows: “ 1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved. 2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article. 3. Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right. Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court. 4. Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a Communal Chamber for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only – (a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution; (b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; (c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court. ... ” 29. The relevant parts of Article 146 of the Constitution read as follows: “1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or an omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person. 2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission. 3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse. 4. Upon such a recourse the Court may, by its decision (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed. 5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned. ... ” 30. The applicant attached to his further observations on the merits (dated 8 January 2002 ) in reply to the Government's observations a document established by the Pancyprian Public Employees'Trade Union on 7 January 2002, in which the following is specified: “It is a well-known fact that the pension constitutes an integral part of the employment contract that the Cyprus government offers to all of its employees, namely civil servants. This is a hard- earned right that the unions have secured over the years and the government has undertaken to pay such a pension as part of the employment contract. This can also be seen from the schemes of service that the government has. A civil service position is accompanied by a compulsory retirement scheme, which consists of receiving certain retirement benefits at the end of one's employment, which include a monthly pension and a lump sum. This is part of the overall employment package the government undertakes to provide, and civil servants contribute with their years of service and by having a certain amount deducted from their salary by way of taxes. This package is based on the employment relationship and the government has undertaken to finance it and provide it at the end of an employee's career. ” THE LAW I. SCOPE OF THE GRAND CHAMBER'S JURISDICTION 31. The applicant submitted that the power to refer a case to the Grand Chamber in accordance with Article 43 of the Convention was limited. Such a referral was an exceptional procedural step, and the Court's jurisdiction had to be exercised carefully. In the present case, only one of the three grounds relied on by the Government for referring the case qualified for review under Article 43 § 2, namely the ground regarding the Court's jurisdiction ratione temporis. In effect, he contended, it was clear from the emphasis the Government put on the three points in their request for referral that the most important one was that of the jurisdiction ratione temporis. This was the only ground which raised a question affecting the interpretation or application of the Convention or that could be said to raise a serious issue of general importance for the purposes of Article 43 of the Convention. 32. The Court considers that it is now well - established case-law that “ the case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in “ the case” being limited only by the Chamber's decision on admissibility. This does not mean, however, that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as this is possible in normal Chamber proceedings, for example by virtue of Article 35 § 4 in fine of the Convention (which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”), or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage ( see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001-VII, and Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003- V ). Thus, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention ( see, mutatis mutandis, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III). 33. This being so, the scope of the case before the Grand Chamber is not limited in the way suggested by the applicant. II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS Non-exhaustion of domestic remedies 1. The Government's submissions to the Grand Chamber 34. In their request for the referral of the case to the Grand Chamber and, subsequently, in their observations, the Government reiterated the objection they had pleaded before the Chamber as to the non-exhaustion of domestic remedies. They underlined that the applicant expressly withdrew the allegation of a violation of a property right which was never raised, argued or adjudicated upon, even in the remotest way. The applicant referred to the retirement benefits only in the context of challenging dismissal as a disproportionate sanction. Thus, the Supreme Court did not in substance deal with or have the opportunity of dealing with an alleged property violation. However, before the Supreme Court, constitutional matters must be specifically raised and pleaded by the party concerned; they are not examined by the court proprio motu. The Chamber appeared to have misunderstood the nature of the proceedings in the domestic courts. The issue of non-exhaustion was a real question of admissibility and the Court was empowered under Article 35 § 4 to deal with it at this stage. 2. The applicant's submissions to the Grand Chamber 35. The applicant maintained that the question of exhaustion of domestic remedies had already been settled by the Chamber in its final decision on admissibility of 19 June 2001. The Government had failed to raise it again at the merits stage before the Chamber and it was doubtful that they even could have done so. Thus, they were estopped from doing so before the Grand Chamber. 3. The Chamber's decision 36. In its admissibility decision of 19 June 2001, the Chamber held that by challenging the legality of the decision of the Public Service Commission to impose the sanction of dismissal, the applicant had also contested, albeit implicitly, the forfeiture of his retirement pension. The Chamber noted that the Supreme Court, sitting as a first - instance court, had held that the discretionary power of the commission concerned only the nature of the sanction, the loss of retirement benefits being the normal consequence of that particular sanction. The Supreme Court, sitting as a court of appeal, had upheld that conclusion. Finally, the Chamber noted that the applicant's lawyer had expressly stated before the Supreme Court that he maintained the third and fourth grounds of appeal, which, in the Chamber's view, also covered the fifth ground. 4. The Court's assessment 37. As in Odièvre, cited above, the Grand Chamber is not precluded from examining the Government's objection of non-exhaustion of domestic remedies since, in accordance with Rule 55 of the Rules of Court, they duly raised this objection at the admissibility stage before the Chamber. 38. While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999- I ). The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities ) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000- XI ). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court (for example, unjustified interference with the right of property) has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies ”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument ( see Van Oosterwijck v. Belgium, judgment of 6 November 1980, A Series no. 40, pp. 16-17, § § 33-34 ). 39. The Court notes that the Convention forms an integral part of the Cypriot legal system, where it takes precedence over any contrary provision of national law (Article 169 § 3 of the Constitution – see paragraph 27 above ). It further notes that Article 1 of Protocol No. 1 is directly applicable within the Cypriot legal system. The applicant could therefore have relied on that provision in the Supreme Court or on arguments to the same or like effect based on domestic law, namely, Article 23 of the Constitution which guarantees the right of property (see paragraph 28 above), and complained of a violation thereof in his case. 40. However, the applicant did not cite Article 1 of Protocol No. 1 before the Supreme Court sitting as a court of appeal. Even if in the fifth ground of the notice of appeal to the Supreme Court it was pleaded that the forfeiture of the retirement benefits upon the applicant's disciplinary dismissal violated the right of property under Article 23 of the Constitution, counsel for the applicant expressly withdrew that ground, along with two others, at the first hearing of the appeal on 14 September 1998. The Supreme Court immediately dismissed the withdrawn grounds and proceeded to hear counsel on the remaining two grounds only, namely the third and fourth, in which it was maintained that, by imposing the sanction of dismissal which involved the forfeiture of the applicant's pension, despite the mitigating circumstances in favour of the applicant, the Public Service Commission had not lawfully exercised its discretionary power (see paragraphs 17- 18 above). At the second hearing of the appeal on 9 July 1999, the Supreme Court explicitly enquired of the applicant's counsel whether he was arguing unconstitutionality, and counsel thereupon reaffirmed that he had withdrawn the first, second and fifth grounds at the first hearing and was only arguing the third and fourth (see paragraph 19 above). It transpires from the records of the hearings before the Supreme Court that, in both hearings, the applicant's counsel referred to the forfeiture of retirement benefits in order to show that the sanction of dismissal was disproportionately severe in the circumstances and that a lighter sanction should have been imposed instead. It was for this reason that the Supreme Court never ruled on whether the applicant's dismissal violated his property right to a pension. 41. In sum, the applicant did not provide the Cypriot courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 2 6 ‑ 2 7, § 72, and Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36). The objection that the relevant “effective” domestic remedy was not used by Mr Azinas in the instant case is therefore well-founded. 42. Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention. 43. In view of this conclusion, it is not necessary for the Court to examine the various arguments submitted to it concerning the Government's objection that the subject-matter of the application was outside the Court's jurisdiction ratione temporis, and in particular the Government's argument that it was open to the Court to entertain this objection despite the fact that they waited until filing their observations on just satisfaction before raising it for the first time (see Rule 55 of the Rules of Court).
The Court, finding the Cypriot Government’s objection that the relevant “effective” domestic remedy had not been exhausted by the applicant to be well-founded, declared the application inadmissible. The applicant had not cited Article 1 (protection of property) of Protocol No. 1 to the Convention before the Supreme Court, sitting as an appeal court. It was for this reason that the Supreme Court never ruled on whether the applicant’s dismissal violated his property right to a pension. The applicant did not therefore provide the Cypriot courts with the opportunity which was in principle intended to be given to States which had ratified the European Convention on Human Rights by Article 35 (admissibility criteria) of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged.