THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56679/00 by Andreas AZINAS against Cyprus

The European Court of Human Rights (Third Section) , sitting on 15 June 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. Kūris, Sir Nicolas Bratza, Mrs H.S. Greve, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced on 18 janvier 2000 and registered on 6 avril 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Cypriot national, born in 1927 and living in Nicosia. He is represented before the Court by Mr A. Demetriades and Mrs E. Nathanael , lawyers practising in Nicosia.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, 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 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 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 Article 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 the 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 imprisonment amounted to a double sentence for the same act.

On 5 January 1983 the Government filed its objections. On 15 September 1984 the applicant filed his observations, to which the Government replied on 10 December 1984. 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 neither control the severity of the sentence imposed by a disciplinary organ, except if this organ exceeded the limits of its margin of appreciation, nor the manner in which the organ assessed the facts of the case. 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. The hearing was adjourned several times, only to be completed on 14 September 1998.

In the meantime, on 14 September 1998, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen proceedings. Thus the appeal was heard for a second time on 9 July 1999 and judgment delivered on 20 July 1999, dismissing the appeal.

B. Relevant domestic law

At the material time, Article 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: …

10 dismissal. …

7. Dismissal entails the loss of all retirement benefits.”

COMPLAINTS

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 complains under Article 6 § 1 of the Convention of a breach of his right to a fair hearing because he has allegedly been punished twice (imprisonment and dismissal) for the same offence.

3. 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.

4. Lastly, the applicant claims to be a victim of discrimination contrary to Article 14 of the Convention on the ground of his political opinions.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention of a breach of his right to a fair hearing because he has allegedly been punished twice (imprisonment and dismissal) for the same offence.

The Court notes that the complaint of the applicant under this head in fact concerns the principle of ne bis in idem , guaranteed by Article 4 of Protocol No. 7, but which has not been ratified by Cyprus. Moreover, the Court notes that neither Article 4 of Protocol No. 7 nor Article 6 of the Convention prevents a person being the subject of proceedings of a different character, like disciplinary proceedings, as in the present case. In this respect, the Court notes that 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.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant next claims to be a victim of discrimination contrary to Article 14 of the Convention on the ground of his political opinions.

The relevant part of Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as … political or other opinion ….”

However, the Court finds that the complaint is wholly unsubstantiated and that the present case discloses no appearance of a violation of this provision of the Convention. It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant next 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.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Finally, the applicant alleges a violation of Article 1 of Protocol No. 1 because of the decision of the Public Service Commission, confirmed by the competent domestic courts, to deprive him of his retirement benefits including his pension. The applicant submits that the forfeiture of his retirement benefits, including his pension, is contrary to the Convention, because, inter alia , his pension is part of the emoluments of a civil servant already earned through his years of service, and he should not be retrospectively deprived of them.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints under Article 6 § 1 (length of proceedings) of the Convention and Article 1 of Protocol No. 1;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President