CONCURRING OPINION OF JUDGE WILDHABER JOINED BY JUDGE S ROZAKIS AND MULARONI

I agree with the majority that the applicant has failed to exhaust domestic remedies. But given the importance of the issues arising on the merits, I wish to add that there would in my opinion have been no violation of Article 1 of Protocol N o. 1.

Firstly, the applicant ' s pension rights did not amount to a sufficient proprietary interest in law to attract the application of Article 1 of Protocol No. 1. His pension rights as a civil servant were non-contributory and contingent on the fulfilment of certain legal conditions. The entitlement to a pension could be suspended where a civil servant – as in the instant case – was dismissed from service as a disciplinary sanction because of serious professional misconduct (stealing, breach of trust and abuse of authority). Under such circumstances, the applicant had no “legitimate expectation” of receiving a pension.

Secondly, even assuming that the applicant ' s entitlement to a pension amounted to a “possession” within the meaning of Article 1 of Protocol No. 1, the interference with the enjoyment of that “possession” was justified. Indeed, according to existing case-law, the right to a pension based on employment can in certain circumstances be assimilated to a property right, although in principle it cannot be interpreted as entitl ement to a pension of a particular amount [1] .

In this case, however, the applicant, a high- ranking civil servant, was sentenced to eighteen months ' imprisonment on counts of stealing, breach of trust and abuse of authority. The Public Service Commission concluded that he had managed the resources of his d epartment as if they were his private property and spent them for purposes other than those of the d epartment. For this breach of the special bond of trust and loyalt y which is required from a high- ranking civil servant he was dismissed. The fact that the sanction of dismissal brought about the forfeiture of the applicant ' s retirement benefits resulted from an express legislative provision. In my view, the application of this provision in the instant case struck a fair and just balance between the protection of the applicant ' s property rights and the requirements of public service.

Accordingly, even if the applicant had exhausted domestic remedies, there would have been no violation of Article 1 of Protocol No. 1 .

CONCURRING OPINION OF JUDGE HADJIHAMBIS

I agree with the majority judgment that the Court is unable to consider the merits of the case by reason of the applicant ' s failure to exhaust domestic remedies. I nevertheless feel it fair, if not necessary, to reiterate the view I expressed in my minority judgment when the case was before the Chamber that, had I considered the complaint admissible, the applicant ' s right to a pension amounted to a “possession” within the meaning of Article 1 of Protocol N o. 1. Indeed , a s in the present case, al though the public servant does not make contributions under the pension scheme, employment is entered into in circumstances involving a general undertaking and a corresponding expectation that a pension w ill be payable as an integral part of the conditions of service. As to whether there would have been a violation of this right, I would still not express an opinion.

JOINT DISSENTING OPINION OF JUDGE S COSTA AND GARLICKI

(Translation)

1. The present case concerns a high-ranking Cypriot official with twenty-two years in public service, on whom a heavy disciplinary penalty was imposed in 1982 after he was sentenced to a term of imprisonment by the Nicosia District Court. The penalty imposed was dismissal and, in accordance with the Public Service Law, he was deprived of all his retirement benefits.

2. The path taken by the application in the Court is as follows: in June 2000 it was declared partly admissible and partly inadmissible. A year later a single complaint – that concerning the peaceful enjoyment of possessions – was declared admissible in the final decision on admissibility, after a preliminary objection raised by the Government of failure to exhaust domestic remedies was dismissed. A year on from that, the complaint was upheld by a Chamber in a judgment in which it found a violation of Article 1 of Protocol No. 1. Finally, at the Government ' s request, the case was referred to the Grand Chamber, which, by a majority, decided in the present judgment to declare the application inadmissible for failure to exhaust domestic remedies.

3. We are in the minority and do not share our colleagues ' view that there has been a failure to exhaust domestic remedies.

4. We do not seek here to contest the Grand Chamber ' s jurisdiction to allow the objection even though it had been dismissed in the admissibility decision. Whatever reservations one might have on the subject, paragraph 37 of the judgment rightly states that , in accordance with the judgment in Odièvre v. France ([GC], no. 42326/98, § 22, ECHR 2003-III) , the Grand Chamber may reconsider a decision to declare an application admissible. As authority for that proposition, the relevant paragraph in Odièvre cites Article 35 § 4 of the Convention (“The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings”). This precedent, which comes from a decision of the Grand Chamber of the Court, must be followed.

5. However, it is our view that the applicant did exhaust domestic remedies.

6. Under the well-established case-law of the Commission and the Court, the rule requiring the exhaustion of domestic remedies “according to the generally recognised rules of international law” (see Article 35 § 1 of the Convention, which set outs the admissibility criteria), thus reflecting the subsidiary nature of the system of European human rights protection, contains two requirements:

(a) the applicant must have made use of the remedies afforded by the legal system of the respondent State; and

(b) the applicant must have raised, at least i n substance , the complaints he or she intends to refer to the Court (see, among many other authorities, Guzzardi v. Italy , judgment of 6 November 1980, Series A no . 39, pp. 26-27, § 72).

7. The fact that the Court only requires complaints to have been raised in substance is not indicative of any laxity on its part, even though, as Professor Sudre has correctly noted: “the European Court has interpreted the exhaustion rule in a way that favours the victim” ( Droit européen et international des droits de l ' homme , PUF , 2003, p. 538). Implicit in the generally recognised rules of internationa l law, particularly where human r ights courts are concerned, is the notion that the rule of exhaustion of domestic remedies must be applied with “a certain degree of flexibility and without excessive regard for matters of form” (see, among other authorities, Guzzardi , cited above, p. 26, § 72, in which the Court clearly rejected the Italian Government ' s argument that the notion of a remedy exercised “in substance” would be “extremely ambiguous” and signify an “ectoplasm of a remedy”). The Court has on numerous occasions dismissed objections of failure to exhaust domestic remedies where it has found that the complaint had been raised in the domestic courts “in substance” (see, among other authorities, Castells v. Spain , judgment of 23 April 1992, Series A no. 236, p. 20, § 32; Botten v. Norway , judgment of 19 February 1996, Reports of Judgments and Decisions 1996 - I, p.140, § 36; and also Fressoz and Roire v. France [GC], no. 29183/95, § 39, ECHR 1999-I. In this latter judgment, the Court accepted that “ freedom of expression was in issue, if only implicitly, in the proceeding s before the Court of Cassation”).

8. In the present case, it is common ground that Mr Azinas made use of the legal remedies afforded by the Cypriot legal system, since he challenged the disciplinary penalty (dismissal, with loss of retirement benefits) in the Supreme Court and subsequently appealed to the same court, sitting as a court of appeal. The sole issue, therefore, is whether the complaint of a breach of his right to the peaceful enjoyment of his possessions was raised at least in substance.

9. In his appeal against the first judgment, the applicant lodged five grounds of appeal with the Supreme Court, in the fifth of which he argued that the forfeiture of his retirement benefits contravened Article 23 of the Constitution. Although not identical to Article 1 of Protocol No. 1, Article 23 of the Constitution does afford like protection of the right of property and to peaceful enjoyment of possessions i n substance . In this ground of appeal, the applicant expressly contested the Supreme Court ' s finding in its first judgment that the loss of retirement benefits did not contravene Article 23 of the Constitution. Therefore, the complaint based, in substance, on the right to protection of property (as guaranteed by Article 1 of Protocol No. 1) was raised both at first instance and on appeal.

10. It is true that in his oral submissions the applicant ' s lawyer said that he would be very brief and “ essentially ” would only deal with two grounds of appeal, before adding that he was “withdrawing” the other grounds (including the ground relevan t here). However, in our view, it is not possible to sustain – without falling into the trap of undue formalis m – that the fifth ground of appeal was no longer before the domestic courts, when it was raised, pleaded and argued before the Supreme Court at first instance and expressly repeated in the notice of appeal. Lastly, the fact remains that the fifth ground was raised at the hearing of the appeal : paragraph 18 of the judgment indicates that, notwithstanding the remarks to which we have referred above, the applicant ' s lawyer said that he would deal with grounds 3 and 4 “and thus ground 5 emanating from them” . He was also at pains to point out that his client had forfeited his pension rights and stress ed the gravity of the breach , which he submitted was unconstitutional , of his client ' s economic right to a pension .

11. In short, we cannot subscribe to what appears to us to be an unduly strict and formal reading of the exhaustion of domestic remedies rule, and for that reason have voted against allowing the Government ' s preliminary objection.

12. In view of the finding of the majority of our colleagues, we will comment on the other issues raised by this application only briefly, as, despite their importan ce and complexity, they are now of purely academic interest.

13. In our opinion, the other preliminary objection raised by the Government – that the Court had no jurisdiction ratione temporis – would have had to be dismissed. Cyprus ratifi ed the Convention as early as 6 October 1962 , and was thus bound by it from that date onwards. However, as regards applications lodged against it with the Convention institutions, the Convention came into force in respect of Cyprus on 1 January 1989, when its declaration accepting the right of individual petition under Article 25 of the Convention, as worded prior to the entry into force of Protocol No. 11 , became effective . Although the applicant was dismissed in 1982, well before that date, it was not until 20 July 1999 that the Supreme Court decided his appeal in a final decision. Had the Supreme Court not chosen to dismiss that appeal, it might have quashed the decision to dismiss the applicant with the result that the Public Service Commission would have had to reconsider the issue in 1999. The relevant date, therefore, is the date of the Supreme Court ' s final judgment.

14. We also consider that Article 1 of Protocol No. 1 was applicable in the instant case. There is a line of case-law which holds, rightly in our view, that a welfare benefit – even under a non - contribut ory scheme – may constitute a possession for the purposes of Protocol No. 1 ( see Gaygus uz v. Austria , judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 41; Buche ň v. t he Czech Republic , no. 36541/97, § 46, 26 November 2002 ; or even more recently, Koua Poirrez v. France , no. 40892/98, § 42, ECHR 2003-X). In the instant case, the applicant, who joined the public service in 1960, knew that he was entitled under domestic law to retirement benefits (save in the event of dismissal, which is a rare occurrence). He therefore had at least a legitimate expectation of receiving the benefits one day.

15. The most dubious point is undoubtedly the issue of compliance with Article 1 of Protocol No. 1. The Chamber found in its judgment that there had been a violation, holding that the balance between the protection of the individual ' s right of property and public-interest requirements had been upset to the applicant ' s detriment. On the facts of the present case, we would probably have reached the opposite conclusion. Just as the applicant had a legitimate expectation of receiving a pension, he was aware that, by statute, dismissal entailed the forfeiture of his pension rights. In the course of his duties, he committed serious criminal offences which resulted in h is receiving an eighteen- month prison sentence. His dismissal in those circumstances was not unjustified, in view of his seniority and the nature of the offences , and on this point we agree with Judge Wildhaber ' s analysis in his own separate opinion. Lastly, the fact that the benefits that were lost arose under a non-contributory scheme makes it difficult to accept that the financial consequences of forfeiture were “particularly harsh”, as the Chamber said in paragraph 44 of its judgment, especially as the applicant ' s wife and children have become eligible for a pension under recently introduced legislation (see paragraph 22 of the present judgment). Ultimately, and with the element of uncertainty that is inherent in a hypothetical vote, we would probably have found that there ha d been no violation of Article 1 of Protocol No. 1.