FOURTH SECTION

DECISION

Application no . 76807/11 Andreas KONSTANTINOU and O thers against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 29 September 2015 as a Chamber composed of:

Guido Raimondi, President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Krzysztof Wojtyczek, Faris Vehabović , Yonko Grozev , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 8 December 2011,

Having deliberated, decides as follows:

THE FACTS

1. The eight applicants in this case are all Cypriot nationals and retired army colonels. Their case concerns the conditions under which they retired from the Cypriot National Guard. They are represented before the Court by Mr A. Markides , a lawyer practising in Nicosia with Markides Markides & Co. A list of the applicants is set out in the appendix.

A. The circumstances of the case

1. The applicants ’ retirement from the National Guard

2. At the material time the conditions of service of commissioned army officers in the Cypriot National Guard, including matters of promotion and retirement, was regulated by the Army of the Republic Law of 1990 and by the Officers of the Army of the Republic (Appointments, Hierarchy, Promotions and Retirements) Regulations of 1990–2002 (“the Regulations”).

3 . Pursuant to the Regulations, each officer was subject to an annual performance review by the Army ’ s Supreme Evaluations Board. Under Regulation 14(3) and (4), that review would lead to one of four category ratings/outcomes:

( i ) the officer being promoted;

(ii) the officer being confirmed in the post at the same rank;

(iii) the officer being deemed to have “successfully terminated his or her career”. This would be the case if he or she did not meet the criteria either for promotio n or confirmation in post (i.e. categories ( i ) and (ii) above) and his or her further service would hinder the advancement of younger officers; or

(iv) the officer being retired. This would be the case when it was not considered appropriate for the officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications.

4 . As a means of allowing officers of lower ranks to advance to higher ranks, Regulation 18(1) provided that, of the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within categories (iii) and (iv). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1), the Supreme Evaluations Board should accord priority to requests from officers for retirement on the basis of having successfully terminated their career.

5 . Regulation 19(1 )( b) and (c) of the Regulations sets out the terms on which an officer falling within categories (iii) and (iv) would leave the army.

6 . For colonels, this regulation provided that a colonel who received a category (iii) rating would be promoted one rank, that is to brigadier, on the day proceeding his or her retirement. His or her pension would then be calculated based on the salary a major general (one rank higher than a brigadier) received at the full age of retirement. The officer would also receive a lump sum payment calculated with reference to his or her pension.

7 . By contrast, a colonel compulsorily retiring with a category ( iv ) rating would do so at his or her existing rank. His or her pension would be calculated based on the salary of a brigadier at full retirement age and the lump sum payment would be calculated with reference to his or her pension. Thus the pensions and lump sum payments would be higher fo r a colonel on a category (iii) rating than a category ( iv ) rating.

8 . The applicants were all colonels in the Cypriot National Guard. Between February 2003 and February 2004, they submitted requests for retirement on the basis of having successfully terminated their career, pursuant to Regulations 14(4 )( c) and 18(2). Their written requests specified that these were without prejudice to any legal rights which might arise from any declarations of unconstitutionality or nullity of the Regulations.

9. The Supreme Evaluations Board considered the requests of the first five applicants at its annual meeting on 9 May 2003; it considered the remaining requests on 9 March 2004. It approved all eight requests and the applicants were consequently deemed to have successfully completed their military careers. In accordance with Regulation 19, the applicants were promoted from colonel to brigadier with effect from the day before their retirement, and their pensions and lump sum payments were determined with reference to the salary of a major-general.

2. Proceedings in the Supreme Court brought by other senior National Guard officers

10. In 2002, the Supreme Evaluations Board gave category (iii) ratings to a number of officers who had held the same rank and who had completed the same number of years of service as the applicants. These officers had not submitted requests for voluntary retirement: the category (iii) rating was the result of their annual performance review.

11. These officers applied to the Supreme Court for annulment of the Board ’ s decisions claiming that they deserved a higher rating.

12. On 15 September 2004, the Supreme Court annulled the Board ’ s decisions, finding that the Board had failed properly to examine whether the conditions in the 2002 Regulations had been met. The court found that it was not open to the Board to find that officers would not qualify for receiving category ( i ) or (ii) ratings simply in order to fill the 30-40% quota for category (iii) ratings set out in the Regulation 18(1).

13 . Further to the decision, the Ministry of Defence made settlement offers to the officers concerned. The offers included the following terms:

( i ) the officers would be re-evaluated for the years 2002-2004 and, as a result, some of them would be promoted from colonel to brigadier.

(ii) the officers would receive an ex gratia payment of CYP 4,000 (EUR 6,834) for each year they would have served before reaching the age of mandatory retirement which applied to their new ranks (sixty years of age for brigadiers as opposed to fifty-eight for colonels).             

14. Having accepted these settlement offers, the officers submitted requests for voluntary retirement. These requests were accepted by the Ministry of Defence and they retired in April 2005.

3. Proceedings brought by the applicants in the Supreme Court

15. On 23 January 2006, the applicants wrote to the Minister of Defence requesting that the offers made to their fellow officers should also apply to them since their requests for voluntary retirement had been made without prejudice (see paragraph 8 above).

16. The Minister rejected the applicants ’ request on 17 February 2006, relying on legal advice to the effect that the Supreme Court ’ s decision of 15 September 2004 had not annulled the 2002 Regulations and the settlement the Ministry had reached with the other officers was in conformity with the Supreme Court ’ s decision.

17. The applicants challenged the Minister ’ s refusal before the Supreme Court, submitting that it was contrary to the principles of equality and non ‑ discrimination enshrined in Article 28 of the Constitution (see paragraphs 20 and 21 below).

18 . On 20 July 2007 a single judge of the Supreme Court annulled the Minister ’ s decision. The judge noted that the Minister had accepted that the applicants were in an equivalent position to their fellow officers in terms of rank and years of service, but had submitted that there was a reasonable distinction between the two groups: the latter group had sought to vindicate their rights through the courts and thus the extra benefits they had received were provided pursuant to Article 146(6) of the Constitution (the right to damages in administrative recourse proceedings before the Supreme Court: see paragraph 22 below). The judge found that the only distinction between the two groups was that the other officers had submitted their requests for voluntary retirement after succeeding in their applications to the Supreme Court. There was thus no reasonable distinction between those officers and the applicants and, in the applicants ’ case, there had been a violation of Article 28 of the Constitution.

19 . The Minister appealed against the decision of the single judge to the plenary of the Supreme Court and, on 14 June 2011, the plenary court allowed the Minister ’ s appeal (appeal no. 131/2007). The court found that applicants had accepted the terms of their retirement unconditionally and without reservation. By contrast, the other officers had contested the legality of the Board ’ s decisions in their cases and they had subsequently received benefits that were determined in light of the Supreme Court ’ s judgment annulling the Board ’ s decisions. In addition, the other officers had continued to serve in the National Guard while their appeal to the Supreme Court had been pending and until they accepted the settlement offers made by the Ministry of Defence. The context surrounding the two groups of officers was different and therefore there had been no discrimination contrary to Article 28.

B. Relevant domestic law and practice

1. Relevant provisions of the Constitution

20 . Article 28(1) of the Constitution provides that everyone shall be equal before the law, administration and justice, and everyone shall be entitled to equal protection and treatment. Article 28(2) protects against direct and indirect discrimination on ground of community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in the Constitution.

21 . Article 28 of the Constitution is not absolute and reasonable distinctions in treatment may be made when the special circumstances of a case so require (see, inter alia , among others, Soteriades v Theofylaktou and others (2002) 3 A.A.D 56; Theocharides v the Republic (1998) 3 A.A.D 63).

22 . Article 146(1) provides for recourse against administrative decisions to the Supreme Court. Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null and void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)). Article 146(6) provides for compensation in such proceedings in the following terms:

“Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.”

2. The Regulations of 1990–2002

23. The relevant provisions of these Regulations are as follows.

24. Regulation 12 provided for the annual evaluation of army colonels and brigadiers.

25. Regulation 14(3) provided that, for such officers, their evaluations would fall into one of four categories: promotion; confirmation (i.e. being confirmed in post at the same rank); being deemed to have successfully terminated his or her career; or retirement. Regulation 14(4) set out the criteria for the four possible evaluations. For promotion or confirmation in post, an officer was required to meet certain merits-based criteria, including grade of at least “very good” in the relevant assessments (Regulations 14(4 )( a) and (b)). Regulation 14(4)(c) provided that the officer would be deemed to have successfully terminated his or her career if he or she did not meet the requirements for promotion or confirmation in post and his or her further service would hinder the normal advancement of younger officers. Regulation 14(4 )( d) provided for retirement when it was not considered appropriate for an officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications.

26. Regulation 15 provided that senior officers evaluated by the Supreme Evaluations Board as falling within Regulation 14(4)(c) or (d) (i.e. receiving a category (iii) or category (iv) rating) would have to leave the army.

27. Regulation 18(1) provided that for the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within Regulation 14(4)(c) or 14(4)(d). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1) the Supreme Evaluations Board should accord priority to requests for retirement on the basis of having successfully terminated their career.

28. As stated at paragraphs 5–7 above, the different pension benefits for senior officers leaving the army with category (iii) and category (iv) ratings were set out in Regulations 19(1 )( b) and 19(1)(c) respectively.

COMPLAINTS

29. Relying on Article 1 of Protocol No. 12, the applicants complain that the refusal of authorities to grant them the same pension benefits and allowances as the other officers who had served at same rank, on the same terms and for an equivalent number of years, but who had managed through negotiations and successful applications to the Supreme Court to gain additional benefits, constitutes an infri ngement of the principle of non ‑ discrimination. The precise benefits that they alleged each of them should have received are set out in the appendix.

30. Without specifying further, the applicants also rely on Article 14 of the Convention.

THE LAW

31. Article 1 of Protocol No. 12 provides:

“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

32. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

33. It is appropriate to consider first the applicants ’ complaint under Article 1 of Protocol No. 12. In doing so, the Court finds as follows.

34. Discrimination means treating differently, without an objective and reasonable justification, persons in similar situations ( Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08 , § 81, ECHR 2013 (extracts); Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 42, ECHR 2009; and Zornić v. Bosnia and Herzegovina , no. 3681/06 , § 26, 15 July 2014) . There will be a difference in treatment if it can be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment ( Konstantin Markin v. Russia [GC] , no. 30078/06 , § 125, ECHR 2012 (extracts) ) . Accordingly, for the present applicants to show discrimination they must show, not only that the other officers who reached settlements with the Ministry of Defence enjoyed preferential treatment, but also that those officers were in an analogous or relevantly similar situation to them.

35. The Court is not persuaded that they were. The crucial difference between those officers and the applicants is that, unlike the applicants, the other officers did not make requests for retirement on the basis of having successfully terminated their career but submitted themselves to the annual evaluation review carried out by the Supreme Evaluations Board. As stated at paragraph 3 above, that annual review had four potential outcomes: ( i ) promotion; (ii) confirmation in post; (iii) being deemed to have successfully terminated one ’ s career; or (iv) the officer being retired, where he or she was considered unqualified. Thus, in submitting themselves to the review, the other officers ran the risk that, instead of being placed in categories ( i )–(iii), they would be placed in category ( iv ). A category (iv) rating would have meant not only that they had to leave the army, but also that they would have to retire without the automatic promotion to a higher rank and accompanying benefits that a category (iii) rating provided. Any subsequent, additional benefits that these officers received, such as the ex gratia payments referred to at paragraph 13 above, were only received because they challenged their category (iii) ratings in the courts and, ultimately, agreed a settlement with the Ministry of Defence.

36. The present applicants, by contrast, ran no such risk. In contrast to the other officers, they submitted requests for retirement on the basis of having successfully terminated their career (in effect, requests for voluntary retirement). In doing so, they knew that, in filling the relevant quotas for categories (iii) and ( iv ) (see paragraph 4 above), the Supreme Evaluations Board would accord priority to their requests and thus, in all likelihood, would give them the category (iii) ratings they wished to receive. It is plain, after all, that the whole purpose of giving priority to requests for retirement was to provide an incentive for freeing up space in the higher ranks and allowing the advancement of younger officers: (see the criteria for a category (iii) rating at paragraph 3 above).

37. When the applicant ’ s requests were accepted, they enjoyed the benefits of category (iii) ratings, that is, a higher rank at retirement and, as a consequence, higher pensions and higher lump sum payments. The applicants cannot therefore assert that, having made requests for voluntary retirement and having received precisely the rating they wanted, they were in an analogous situation to the other officers. This is because, in contrast to the applicants, the other officers wished to remain in the army and, for that reason, were prepared to run the risk of being forced to retire. Having been placed in category (iii), they claimed to have merited a higher rating and obtained a judicial annulment which entailed a re-examination of the matter. There is, therefore, no analogy between the two groups. Consequently, because the applicants have not shown that they were in an analogous situation to the other officers, they have not shown that there has been a difference in treatment. Without a difference in treatment, there can be no claim for discrimination. For this reason, their complaint under Article 1 of Protocol No. 12 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.

38. It remains only to consider the applica nts ’ complaint based on Article 14 of the Convention. Here, the Court notes that this provision has no independent application and can only be invoked in conjunction with a substantive provision of the Convention or its Protocols, the most obvious connection in the present case being with the right to property, guaranteed by Article 1 of Protocol No. 1. In any event, this failure to invoke a substantive article of the Convention is of no consequence. Notwithstanding the difference in scope between Article 1 of Protocol No. 12 and Article 14 of the Convention, the meaning of the term “discrimination” in these articles is identical (see Maktouf and Damjanović at § 81; Sejdić and Finci at § 55; and Zornić at § 27, all cited above). Consequently, if there is no difference in treatment for the purposes of Article 1 of Protocol No. 12, there can be no difference in treatment for the purposes of Article 14 of the Convention. For this reason, the applicants ’ complaint under Article 14 is also manifestly ill ‑ founded and also must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 22 October 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President

Appendix

1. Of the eight applicants, five, Andreas Konstantinou , Christos Karnaros , Kyriakos Petrou , Panayiotis Christodoulou and Andreas Georgiades , retired in October 2003. The remaining three, Dionysios Zachariou , Alexandros Georgiades and Soteris F ilippou , retired in August 2004. Their fellow officers reached settlements with the Ministry of Defence and retired at the end of March 2005.

2. The applicants alleged that they were deprived of two sets of benefits:

( i ) benefits based on the re-evaluation and ensuing promotions their fellow officers received and/or the salaries, higher pensions and higher lump retirement payments that the applicants maintain they would have received had they not been re-evaluated/promoted but had nonetheless remained in the National Guard until end of March 2005; and

(ii) ex gratia payments .

A. Salary, pension and related bonuses

3. The applicants submitted that, if the settlements their fellow officers reached had applied to them, they too would have been re-evaluated for the years 2002-2004. In light of that re-evaluation they would possibly have received the promotions which their fellow officers received.

4. If they had received those promotions, in the course of any settlement reached with the Ministry of Defence, the applicants too would have received the difference in salary between the lower and higher rank, a “thirteenth-month” salary payment, a higher pension and a higher lump sum on retirement which the other officers received.

5. The applicants further allege that these payments would have been calculated with reference to the period between the date of their voluntary retirement and the date the other officers reached their settlements with the Ministry (the end of March 2005). Thus, Andreas Konstantinou , Christos Karnaros , Kyriakos Petrou , Panayiotis Christodoulou and Andreas Georgiades allege that they should have received the above payments for the period October 2003 – end of March 2005. The remaining three applicants, Dionysios Zachariou , Alexandros Georgiades and Soteris F ilippou allege that they should have received the above payments for the period August 2004 – end of March 2005.

6. In the event that the applicants, despite such a re-evaluation, did not receive promotions, they allege that they still have remained in the National Guard until end of March 2005 and would thus have received their normal salaries instead of their pensions during the relevant period (October 2003/August 2004 – end of March 2005). Thereafter, they would have received higher pensions and higher lump sums on retirement (to reflect their longer service).

7. Precise calculations were not possible, but the higher sums would have been approximately CYP 20,000 for the five applicants who retired in 2003 and CYP 10,000 for the three who retired in 2004.

B. Ex gratia payments

8. The applicants further allege that if the settlements had applied to them, they too would have been entitled to the ex gratia payments the other officers received. Their fellow officers were given ex gratia payments of CYP 4,000 for every year between the year they retired and the year they would have reached the mandatory retirement age for their rank. Based on a mandatory retirement age of 58 years of age, the applicants allege that the respective ex gratia payments they should have received are as follows:

No.

Name

Year of birth

Date of retirement

Year the applicant would have reached the mandatory retirement age

Amount of ex gratia compensation the applicant alleges he would have received (CYP)

1Andreas KONSTANTINOU

1953October 2003

2011

32,000

2Christos KARNAROS

1949October 2003

2008

16,000

3Kyriakos

PETROU

1956October 2003

2014

44,000

4Panay iotis CHRISTODOULOU

1957October 2003

2015

48,000

5Andreas GEORGIAD E S

1956October 2003

2014

44,000

6Dionysios ZACHARIOU

1956August 2004

2014

40,000

7Alexandros GEORGIADE S

1952August 2004

2010

20,000

8Sotiris

FILIPPOU

1955August 2004

2013

36,000