Information Note on the Court’s case-law 63

April 2004

Azinas v. Cyprus [GC] - 56679/00

Judgment 28.4.2004 [GC]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure to raise Convention complaint in substance: inadmissible

Facts : In 1982 the Public Service Commission brought disciplinary proceedings agains the applicant, a senior civil servant, and decided to dismiss him in view of his conviction for t heft, breach of trust and abuse of authority. As a consequence of his dismissal, the applicant forfeited his retirement benefits, including his pension. The applicant’s application to have his dismissal declared null and void as a disproportionate sanction was rejected by the Supreme Court, which held that it had no jurisdiction to intervene unless it was evident that the disciplinary body had exceeded its discretion. In 1991 the applicant appealed on points of law, setting out five grounds, the fifth of wh ich asserted that the loss of retirement benefits was contrary to the constitutional provisions guaranteeing the right of property. At the hearing in 1998 the applicant’s lawyer stated that he would deal only with the third and fourth grounds of appeal and , in reply to the court’s query, confirmed that the other grounds were withdrawn. The court consequently dismissed these other grounds. At a further hearing of the appeal in 1999 the applicant’s lawyer again confirmed that all grounds except the third and fourth had been withdrawn. The Supreme Court dismissed the appeal.

Law : Government’s preliminary objection (non-exhaustion of domestic remedies) – In so far as there exists at national level a remedy enabling the national courts to address, at least in sub stance, the alleged violation of the Convention right at issue, it is that remedy which should be exhausted. It is not sufficient that the applicant may have exercised another remedy which could have overturned the impugned measure on other grounds unconne cted with the complaint of a violation of the Convention. In the present case, since the Convention forms an intergal part of Cypriot law and Article 1 of Protocol No. 1 is directly applicable, the applicant could have relied on that provision or on argume nts to similar effect based on the equivalent constitutional provision. However, he did not refer to Article 1 of Protocol No. 1 in his appeal and, even if his fifth ground of appeal invoked his constitutional right of property, his lawyer expressly withdr ew that ground and later confirmed that withdrawal, his reference to the forfeiture of retirement benefits being intended to show that the dismissal was a disproportionate sanction. For that reason, the Supreme Court never ruled on whether the applicant’s dismissal violated his right to a pension. Thus, the applicant did not give the national courts the opportunity to address and, if appropriate redress the alleged violation, and the application must be rejected as inadmissible.

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