CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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.