Lexploria

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)

Menu

THRASSOU, THEODOROU, SOPHOCLEOUS, FIAKAS and CONSTANTINOU v. CYPRUS

THRASSOU, THEODOROU, SOPHOCLEOUS, FIAKAS and CONSTANTINOU v. CYPRUS

LEXI