AS TO THE ADMISSIBILITY OF
by Andreas AZINAS
The European Court of Human Rights (Third Section), sitting on 19 June 2001 as a Chamber composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja,
Mr M. Ugrekhelidze, judges,
Mr D. Hadjihambis, ad hoc judge,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 18 January 2000 and registered on 18 April 2000,
Having regard to the partial decision of 15 June 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Andreas Azinas, is a Cypriot national, born in 1927 and living in Nicosia. He is represented before the Court by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked until 30 July 1982 as Governor of the Department of Co-operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him due to the fact that on 9 April 1981 he was found guilty by the District Court of Nicosia of stealing, breach of trust and abuse of authority. He was sentenced to 18 months’ imprisonment. The applicant’s appeal against both conviction and sentence was dismissed by the Supreme Court on 16 October 1981.
The Public Service Commission held that the applicant had managed the resources of the above-mentioned Department as if it were his private property and spent them for purposes other than those of the Department. The disciplinary sentence of dismissal also resulted in the forfeiture of the applicant’s retirement benefits including his pension, according to section 79(7) of the Public Service Law No. 33/67, as from the date of his conviction by the District Court.
On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant’s main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12(2) of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act.
On 21 December 1982 (according to the Government) or 5 January 1983 (according to the applicant), the Government filed their objections. On 19 April 1984 (according to the Government) or 15 September 1984 (according to the applicant), the applicant filed his observations, to which the Government replied on 10 December 1984 (according to them) or 19 December 1984 (according to the applicant). From then on, the hearing of the case was repeatedly adjourned and was only completed on 9 March 1988. Judgment was delivered on 12 June 1991, by which the Supreme Court rejected the applicant’s application and confirmed the Public Service Commission’s decision.
The Supreme Court stated that it could control neither the severity of the sentence imposed by a disciplinary organ, except if the latter exceeded the limits of its margin of appreciation, nor the manner in which the organ assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of the retirement benefits being the normal consequence of the particular sanction imposed by the Commission. As for the right not to be punished twice for the same act, the Supreme Court held that “criminal and disciplinary proceedings may be pursued simultaneously or in succession in respect of the same conduct, in recognition of the fact that the two proceedings are designed to serve separate and distinct purposes” and that “the same act may constitute both a criminal and a disciplinary offence; that this is so, is no obstacle to the institution of disciplinary proceedings, nor a conviction upon a disciplinary charge similar in nature to an offence created by the Criminal Code …”.
On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as an appeal court. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court, sitting as a first instance court, that the loss of retirement benefits was not contrary to Articles 23(1) and 23(2) of the Constitution.
The hearing was adjourned several times: It was fixed for 12 January 1996, but as the applicant appointed a new lawyer, a total of four adjournments were granted from that date until 18 November 1996, at the request of counsel for both sides.
On 18 November 1996 the applicant’s lawyer informed the Supreme Court that negotiations for a settlement of the applicant’s claims concerning his retirement benefits were in progress and invited the court to adjourn the case pending their outcome. The hearing was thus fixed for 3 February 1997.
However, on 6 December 1996, the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997 and directed the amended notice of appeal to be filed within ten days.
From 3 February 1997 to 14 September 1998 the applicant requested and obtained six further adjournments pending the above-mentioned negotiations: on 9 May 1997, 6 October 1997, 4 November 1997, 9 January 1998, 10 March 1998 and 30 April 1998.
On 14 September 1998 in his opening address, the applicant’s lawyer stated that he would only deal with grounds 3 and 4 of the appeal, which also covered ground 5. In those grounds the applicant had challenged the findings that his dismissal and consequent forfeiture of his pension rights were not disproportionate to the gravity of the offence, and that the Public Service Commission had acted lawfully, within the limits of its discretion, in imposing these sanctions. He conceded the withdrawal of the other grounds of appeal. Subsequently, the lawyer declared that “the disciplinary punishment of dismissal exceeded the extreme limits of proportionality but the applicant did not raise any other issue on this point (forfeiture of pension rights) as a separate and autonomous right because it was a very big issue”. However, it transpires from the pleadings that the applicant’s lawyer expressly stated that he would deal with grounds 3 and 4, which also implied ground 5. Ground 5 read as follows: “The finding of the First Instance Court that the loss of the applicant’s retirement benefits is not contrary to Articles 23(1) and (2) of the Constitution is erroneous”.
Judgment was reserved.
In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. On 8 March 1999 the hearing was adjourned until 31 March 1999 due to a change in the composition of the court and then until 29 April 1999 because one of the judges was absent on sick-leave. On 21 April 1999 the applicant’s lawyer applied for a further adjournment due to another engagement. The hearing was fixed for 14 May 1999 but was adjourned again until 17 June 1999, owing to the absence of one member of the bench, and then until 9 July 1999 at the request of the applicant. Thus the appeal was heard for a second time on 9 July 1999 and judgment delivered on 20 July 1999, dismissing the appeal.
According to the Government, the Supreme Court invited the applicant’s lawyer to re-confirm his position, recorded during the first hearing, that all grounds of appeal, except ground 3 and 4 had been withdrawn, which he did. It was also confirmed that no issue as to the constitutionality of the provisions of the Public Service Law regarding the loss of retirement benefits was raised, but rather that this point was raised only in support of the applicant’s main allegation that, although the Public Service Commission had considered a number of mitigating factors, the imposition of the ultimate disciplinary sanction of dismissal upon the applicant was in flagrant violation of the principle of proportionality and an abuse of the limits of their discretion.
B. Relevant domestic law and practice
At the material time, section 79 of Public Service Law No. 33/67 read as follows:
“1. In accordance with the present law, the following disciplinary penalties may be imposed: …
2 severe reprimand
3 disciplinary transfer
4 interruption of annual salary increase
5 suspension of annual salary increase
6 pecuniary penalty which cannot exceed three months’ salary
7 reduction in the salary scales
8 reduction to the ranks
9 compulsory retirement
10 dismissal. …
7. Dismissal entails the loss of all retirement benefits.”
A revised version of section 79(7) of the Law is today 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.”
Under the provisions of the Public Service Law, the duties and responsibilities of posts in the public service are stipulated in the relevant “Schemes of Service”, approved by the Council of Ministers. According to the Scheme of Service for the post of the 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. Advisor 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.”
A public servant’s entitlement to a pension is governed by the Republic’s Pensions Law, Cap. 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.”
Article 166 of the Constitution reads as follows:
“1. 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 ...”
1. The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings before the competent Cypriot courts. He alleges that the proceedings commenced on 8 October 1982, the judgment at first instance being delivered on 12 June 1991 and the judgment on appeal on 20 July 1999.
2. The applicant also alleges a violation of Article 1 of Protocol No. 1 because of the decision to deprive him of his retirement benefits, including his pension.
1. The applicant alleges a violation of the Article 6 § 1 of the Convention, which insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
As their main submission, the Government contest the applicability of Article 6 in the present case.
Firstly, they maintain that the “dispute” did not concern the applicant’s pension or any other retirement benefit of his. The question which was determined was whether the discretion of the Public Service Commission in imposing the disciplinary sanction of dismissal was lawfully exercised. As it was made clear in both judgments of the Supreme Court, sitting at first instance and on appeal, the Public Service Commission did not take a decision as to the loss of the applicant’s retirement benefits. The Commission did not enjoy any discretion as to such loss, in that upon reaching a decision as to dismissal, the loss of these benefits was automatic, pursuant to section 79(7) of Law 33/67.
In particular, the Government contend that the applicant expressly withdrew his fifth ground of appeal from the Supreme Court as to the alleged violation of his right to property guaranteed by Article 23 of the Constitution. The Supreme Court was thus deprived of the opportunity to address this issue separately. The Government stress that any points made by the applicant during the hearing as to the loss of his retirement benefits aimed only at supporting his main submission concerning the illegality of the Public Service Commission’s decision to dismiss him.
Secondly, the Government allege, on the basis of the Court’s judgment in the case of Pellegrin v. France ([GC], no. 28541/95, ECHR 1999-VIII), that the applicant, Governor of the Department of Co-operative Development, enjoyed wide powers conferred by public law and participated directly in the field of the State’s public finances, which is clearly a sphere in which States exercise sovereign power. The State has a legitimate interest to require from high ranking officials, such as the applicant, a special bond of trust, loyalty and allegiance to the laws. In the present case this is evident both from the judgment of the District Court of Nicosia and from the decision of the Public Service Commission itself. Furthermore, the case before the Supreme Court did not involve a dispute concerning a pension within the meaning of paragraph 67 of the Pellegrin v. France judgment. Indeed, the case concerned the exceptional situation in which the Public Service Commission has the power, and even the duty, to take action to protect the general interest of the State and the integrity of the public service. Such an action is ipso facto, automatically and synchronously accompanied by an ineligibility for pension benefits, being a specific provision of public law.
The applicant submits that at no time during the domestic proceedings did he separate the forfeiture of his pension from his dismissal. These two aspects of the Public Service Commission’s decision came hand in hand and at all times in the domestic proceedings the applicant had challenged both aspects. His third and fourth grounds of appeal in substance covered the fifth ground which was withdrawn, and his lawyer always referred to the dismissal in conjunction with the forfeiture of the pension rights.
Moreover, the applicant maintains that his status as a civil servant did not entail the exercise of sovereign powers as he was under the authority and supervision not only of the Minister of Commerce and Industry but also of the Director General of the Ministry. His rank was that of a head of department, as in the many other departments which the Ministry has.
The Court notes that section 79 of the Public Service Law provides that the harshest disciplinary sanction which may be imposed on a public servant who commits a serious offence is that of dismissal, which automatically entails the loss of all retirement benefits.
It follows that by challenging the legality of the decision of the Commission to impose the sanction of dismissal, the applicant also contested, albeit implicitly, the forfeiture of his retirement pension. The Court cannot accept the argument of the Government according to which the applicant, by withdrawing his fifth ground of appeal, deprived the Supreme Court of the opportunity to take a stand on that matter. The Court notes in this respect that the Supreme Court, sitting as a first instance court, held that the discretion of the Public Service 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 an appeal court, upheld that conclusion. Lastly, the Court notes that the applicant’s lawyer expressly stated before the Supreme Court that he maintained the third and fourth grounds of appeal, which also covered the fifth ground.
Accordingly, the first limb of the Government’s objection must be dismissed.
However, as regards the second limb of the Government’s objection, the Court notes that the applicant, who had been the Governor of the Department of Co-operative Development, had occupied a senior management position in the public service. Although he was no longer a civil servant from 1982 onwards, the proceedings before the Supreme Court exclusively concerned his dismissal and not the consequential forfeiture of his pension rights. In the light of the above considerations and the aforementioned Pellegrin case-law, the Court agrees with the Government that Article 6 § 1 of the Convention is not applicable in the present case to the dispute between the applicant and the Cypriot State.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention on the basis of the second limb of the Government’s objection.
2. The applicant also alleges a violation of Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
(a) According to the Government, the applicant’s allegation that the Public Service Commission “decided” to deprive him of his retirement benefits is misleading. The loss of these benefits came about by application of a legislative provision, namely section 79(7) of the Public Service Law, which applied automatically following the dismissal decision. Once decided, the Public Service Commission had no discretion whatsoever as to the loss of retirement benefits.
The Government reiterate that, by his conduct before the Supreme Court, the applicant deprived it of the opportunity to address the issue of the violation of his property rights. Not only did he withdraw his ground of appeal on that point, but, in reply to a specific question from the Supreme Court in that respect, he confirmed in a clear and unambiguous manner that he did not intend to raise its constitutionality.
The Government invoke the judgment of the Court in the case of Yahiaoui v. France (preliminary objection – n° 30862/96, Section III, 14.01.2000), in which the Court upheld a preliminary objection relating to non-exhaustion of domestic remedies because the applicant had failed to file further written pleadings and thus to pursue his appeal. A fortiori in the present case, where part of the appeal was dismissed following an express declaration of withdrawal, the conclusion should not be different.
The applicant stresses that the Public Service Commission had discretion to impose the less harsh punishment of compulsory retirement without forfeiting his pension. He also reiterates that he had raised the matter of the forfeiture of his rights under Article 1 of Protocol No. 1 at all times in the domestic proceedings.
The Court notes that the Government’s objection under this Article is the same as the first limb of the objection raised under Article 6 of the Convention. Accordingly, it considers that the objection must be dismissed for the same reasons.
(b) As regards the merits of the complaint, the Government submit that its public servants do not participate in a contributory pension scheme, by which a standard deduction would have had to be made from their monthly salary. The payment of public service pensions is made out of the Republic’s Consolidated Fund, pursuant to Articles 165 and 166 of the Constitution. Section 7 of Cap. 311 is irrelevant to the facts of the present case because the applicant’s dismissal was imposed as a disciplinary sanction under section 79(1) of the Public Service Law.
The Government claim that the applicant’s retirement benefits and pension do not amount to “possessions” within the meaning of Article 1 of Protocol No. 1. His entitlement was conditional upon falling within one of the categories expressly prescribed by the law, which categories clearly did not cover the dismissal of a public servant as a disciplinary sanction.
Even if the pension at issue is deemed to amount to a “possession”, deprivation thereof by virtue of section 79(7) of the Public Service Law is consistent with Article 1 of Protocol No. 1. A public servant who is found guilty of serious misconduct, justifying the most severe sanction of dismissal, violates the most fundamental duties and responsibilities owed to the State and causes irreparable damage to the credibility, integrity and image of the public service as a whole. He cannot, therefore, be allowed to walk away from the service enjoying any of the financial benefits that other law-abiding and loyal public servants expect to receive upon retirement. It must be noted in this respect that section 79(7) applies only in the most serious cases and upon the imposition of the severest lawful sanction.
In the alternative, the Government rely on the second paragraph of Article 1 of Protocol No. 1. The forfeiture of retirement benefits is a sui generis penalty operating beyond the limits of the discretion of the Public Service Commission, being attached automatically to the disciplinary sanction of dismissal. It operates as a penalty in the sense that it strips the offending public servant upon dismissal of any eligibility to retirement benefits, but at the same time operates as a legislative tool for the State to secure the “payment” of this sanction.
The applicant submits that his contributions during 20 years of employment, his employer’s undertaking to finance a pension, his retirement benefits and his pension amount to possessions within the meaning of Article 1 of Protocol No. 1. Indeed this is indirectly admitted by the Government which amended section 79(7) so that the wife and children of a dismissed public servant would be allowed to receive a pension as if he had died on the day he was dismissed. The applicant further submits that he was deprived of his pension solely by the Public Service Commission’s decision and not as a result of it being in the public interest or subject to the conditions provided for by Cap. 311.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the complaint under Article 1 of Protocol No. 1;
Declares inadmissible the remainder of the application.
S. Dollé J.-P.
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