14 January 2008

FIRST SECTION

Application no. 33631/06 by Maria VROUNTOU against Cyprus lodged on 25 July 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Maria Vrountou, is a Cypriot national who was born in 1980 and lives in Kokkinotrimithia. Sh e is represented before the Court by Mr C. Christophi, a lawyer practising in Nicosia .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant ’ s mother has been a refugee since 1974 and is a holder of a refugee identity card.

1. Application for refugee identity card to the Civil Registry and Migration Department

By letter dated 27 February 2003 the applicant submitted, through her lawyer, an application to the registering officer at the Civil Registry and Migration Department to acquire a refugee identity card with occupied Skylloura, the place from which her mother was displaced, as her place of displacement.

The register ing officer, in a letter dated 6 March 2003 , rejected the applicant ’ s request on the ground that s he did not satisfy the conditions and criteria set for this purpose, namely that the applicant was not considered a displaced person because her father was not a displaced person. The text of the above-mentioned letter read as follows:

“I am instructed to refer to your letter of 27.2.2003 relating to the application of your client Maria Vrountou (Identity Card No. 812544) to be granted a refugee identity card with Skylloura as the place of her displacement, and I inform you that, in accordance with the criteria in force, which were established for this purpose, a displaced person is considered to be a person whose permanent home before and until the Turkish invasion was in the occupied areas. Children born after the Turkish invasion to a father who is displaced are also considered displaced, provided that he possesses a valid refugee identity card.

On the basis of the extended criteria which were established on 19.4.1995, all those persons are also considered displaced who before and until the Turkish invasion had their normal residence in the free areas because of their work but whose permanent home and/or property in general was in the occupied areas. In this category are also included persons who before and until the Turkish invasion were temporarily living abroad but whose permanent home and/or immovable prope rty was in the occupied areas.

As emerges from the content of your letter mentioned above, your client is not considered as displaced because her father is not a displaced person. Her mother, who is considered displaced, possesses a valid refugee identity card no. 93072. Your client was born in Nicosia after the Turkish invasion to a father who is not a displaced person.

In view of the above, I regret to inform you that the application of your client cannot be approved because she does not fulfil the conditions and criteria fixed for this purpose, as described above. ”

2. First instance proceedings before the Supreme Court (administrative jurisdiction) – recourse no. 436/03

The applicant then filed a recourse before the Supreme Court challenging the above decision. She claimed, inter alia , that it was in violation of the principle of equality safeguarded by Article 28 of the Constitution and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No 1 and Article 13.

The Supreme Court dismissed the recourse on 12 May 2004. It noted, amongst other things, that the decision that was challenged before it has as its basis the circular of the Director of the Service for the Care and Rehabilitation of Displaced Persons dated 10 September 1975, the content of which had been approved by the Council of Ministers at its meeting on 20 April 1994. The Supreme Court found that on the basis of the jurisprudence t he extension of the applicable criteria in a manner so as to cover the children of a displaced mother as well was not possible. It did not therefore have the competence to proceed to an extended application of a legislative arrangement and acceptance of the applicant ’ s arguments would be equivalent to the acceptance and application of the above principle of extended application which had not received the sanction of the domestic jurisprudence.

In its judgment the court noted that the question of extending the term “displaced” in a manner to cover also the children whose mother was displaced but whose father was not, ha d been repeatedly discussed in the past and before the competent Parliamentary Committee for Refugees of the House of Representatives, before whom the relevant proposed law had been placed and continue d to be in abeyance. Furthermore, it observed that because of the serious political and financial consequences which would ensue from such a possible extension of the term “displaced” the Ministry of the Interior had referred the entire matter to the Council of Ministers for briefing . In its meeting of 19 April 1995 the Council of Ministers decided not to extend the term.

3. Appeal proceedings before the Supreme Court (revisional jurisdiction) – appeal no. 3830

The applicant filed an appeal on 23 June 2004 before the Supreme Court (revisional jurisdiction). She complained under Article 28 of the Constitution, Article 14 of the Convention taken in conjunction with Article 1 of Protocol No 1 and Article 13 in respect of the decision in question, and, in the event the Supreme Court decided to not accept the principle of “extended equality”, in relation to the criterion applied for the purposes of granting refugee identity cards.

By judgment of 3 March 2006 the Supreme Court dismissed the appeal and upheld the findings of the first instance court. The court observed, inter alia, that it had not been able to identify the basis of the circular of 10 September 1975.

The Supreme Court held as follows:

“ ...

The present appeal was lodged against the above conclusion, in which an attempt was made to demonstrate that we must depart from the above decision, since the Supreme Court can in the present case proceed to the so-called extending interpretation and by invoking the principle of equality widen the application of the specific criterion to the childre n of displaced mothers as well.

The proposed extension of the institution was placed before the Council of Ministers in Proposal no. 1852/92, which was submitted by the Ministry of the Interior for amending the criteria for providing assistance to displaced persons, but the decision taken refers only to amendments which do not concern the present case. Despite the fact that on 19.4.1995 also (Decision of the Council of Ministers no. 42.465) further amendmen ts were made by which the term ‘ displaced ’ was extended and now includes other categories of those entitled, the point which interests us still remains unchanged.

We note incidentally that according to the first proviso of section 119 of the Law on the Register of the Population, N . 141(1)/2002, the children whose fath er is displaced are considered to have their permanent home in t he occupied areas and thus, for the purposes of this law, are considered displaced from the same place from which their father comes.

In accordance with the jurisprudence ( Dias United Publishing Co Ltd v. The Republic, 1996 3 A.A.D. 550 ) the non-existence of a legislative provision cannot be made up for by a judicial decision because in such a case the constitutional check which the Supreme Court exercises would be turned into a means of reshaping or completing the legislation.

...

We have given the matter very serious consideration in view also of the position that in the case of a n arrangement favouring one sex only, the extended application of the provision also finds support in European Community Law ...

However this may be, we cannot deviate from the prevailing jurisprudence. Dias United Publishing Co Ltd v. The Republic , above, fixed the framework of the jurisdiction of the Supreme Court. The Supreme Court has, in accordance with Article 146.4 of the Constitution, the power to uphold in full or in part the decision appealed against or to declare the act or omission invalid. It does not have jurisdiction to legislate by extending legislative arrangements which did not gain the approval of parliament. Such a thing would conflict with the principle of the separation of powers. We note that the House of Representatives cannot of its own accord proceed to the enactment of legislation when the proposed law will presuppose expenditure. If the House of Representatives, the constitutionally appointed legislative organ, does not have such a right, the Supreme Court has it even less.

In agreement with the principle as laid down, we conclude that the Supreme Court does not have the competence to proceed to an extended application of a legislative arrangement.”

B. Relevant domestic law

1. The Constitution

The right to equality before the law, administration and justice is set out in Article 28 of the Constitution which provides as follows , in so far as relevant :

“1. All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby.

2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his 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 this Constitution.

...”.

This provision has independent existence and therefore can be raised alone and in conjunction with another right protected by the Constitution.

2. Relevant decisions, circulars and provisions concerning “displaced” persons and refugee identity cards

The Council of Ministers at its meeting of 19 September 1974 approved the introduction of a scheme of aid for displaced persons and war victims. For the purposes of this scheme the term “ displaced” was determined by the Council of Ministers (decision no . 13.503 of 19 September 1974) as being any person whose :

“(a) permanent home is the areas occupied by the Turkish invader ;

(b) permanent home is in an inaccessible area or in an area which was evacuated to meet the needs of the National Guard.”

For the implementation of t he above scheme , a circular dated 10 September 1975 was issued by the Director of the Service for the Care and Rehabilitation of Displaced Persons (“SCRDP”):

“ (a) When a displaced woman marries a non-displaced man, the husband and children cannot be registered or considered as displaced persons;

(b) When a displaced man marries a non-displaced woman, the non-displaced wife will be registered on the refugee identity card of the husband. The children will be considered as refugees and will be registered on the refugee identity card of their father.”

The Council of Ministers was informed of the above circular at its meeting on 20 April 1994 and agreed with its content.

S ubsequently, at a meeting on 19 April 1995 , the Council of Ministers decided to extend the term “displaced” in a manner so that persons would also be considered displaced who before and up to the Turkish invasion had their ordinary residence in the free areas and/or abroad because of their work and/or other obligations but whose home and property in general was in the occupied areas (decision of the Council of Ministers, n o. 42.465). It, however, decided that the term “ displaced” could not be extended to children whose mother was displaced but whose father was not for the following reasons :

“ (a) The actual percentages of displaced persons will be altered.

(b) According to a relevant estimate by the Statistical and Research Department, the percentage of displaced persons, in such a case, will gradually climb to 80% of the total population of Cyprus .

(c) The actual number of electors in the occupied Electoral Districts will increase disproportionately, with the corresponding increase-decrease of parliamentary seats by Electoral District. ”

A ccording to the first proviso of section 119 of the Law on the Register of the Population (Law 141(1)/2002) children whose fath er is displaced are considered to have their permanent home in t he occupied areas and thus, for the purposes of this law, are considered displaced from the same place from which their father comes.

COMPLAINTS

1 . The applicant complained under Article 1 of Protocol No. 1 that the refusal of the authorities to grant her a refugee identity card infringed her property rights guaranteed by this provision. In this respect she maintained that having this card provided the holder with a number of benefits such as financial aid, scholarships, free education, medical treatment and housing and help in the form of clothing and footwear.

2 . She further complained that the decision not to grant her a refugee identity card on the criterion that she was the child of a mother but not a father who was displaced was discriminatory on the grounds of sex in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1 and in breach of Protocol No. 12.

3 . Finally, the applicant complained under Article 13 of the Convention that in view of the Supreme Court ’ s findings she did not have an effective remedy in respect of her Convention complaints.

QUESTIONS TO THE PARTIES

1. Is Article 1 of Protocol No. 1 applicable in the present case? In particular, can the applicant claim to have a “possession” within the meaning of Article 1 of Protocol No. 1?

2. Bearing in mind that a child whose mother is displaced but whose father is not displaced is not entitled to a refugee identity card unlike a child whose father is displaced , does the present case disclose discrimination on grounds of sex in violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and/or in violation of Article 1 of Protocol No. 12?

3 . In view of the findings of the Supreme Court, can it be said that the applicant had at her disposal an effective domestic remedy for her Convention complaints as required by Article 13 of the Convention?