DISSENTING OPINION OF JUDGE HADJIHAMBIS

I find myself in dissent from the judgment to the extent and for the reasons which follow.

In order to determine whether there is a violation of Article 1 of Protocol No. 1, it is essential in the first place to establish what the dispute before the competent court in Cyprus was.

By his recourse no. 415/82, the applicant challenged the legality of the decision of the Public Service Commission as to his dismissal, which automatically carried with it under Law 33/67 the forfeiture of his retirement benefits, including his pension. The challenge was on four grounds:

a. that the Public Service Commission was not properly constituted;

b. that his disciplinary dismissal and consequent forfeiture of his retirement benefits constituted a second punishment after his criminal conviction and sentence, in violation of Article 12 (2) of the Constitution prohibiting double punishment;

c. that the automatic forfeiture of his retirement benefits upon his disciplinary dismissal under the law (Law 33/67) and the absence of discretion in the Public Service Commission in the matter violated Article 12(3) of the Constitution wich provides that the punishment must not be disproportionate to the offence;

d. that the forfeiture of his retirement benefits upon his disciplinary dismissal violated Article 23 (1)(2) of the Constitution which guarantees the right to property.

In the appeal (no. 1389), ground (a) was raised as ground (1) of the appeal. This ground was, however, expressly withdrawn at the hearing of the appeal and so was never argued or adjudicated upon, nor was it taken up in this application.

Ground (b) was raised as ground (2) of the appeal. This was also expressly withdrawn at the hearing of the appeal and so also was never argued or adjudicated upon, nor was it taken up in this application.

Ground (c) was not raised as such in the appeal. It was raised, as grounds 3 and 4 of the appeal (as amended), as a complaint that the Public Service Commission had not exercised its discretion lawfully in imposing upon the applicant the severest disciplinary sentence of dismissal. The argument now was no longer that Law 33/67 was contrary to Article 12 (3) of the Constitution by providing a mandatory forfeiture of retirement benefits which might be disproportionate to the offence, but that, by imposing the sentence of dismissal which involved the forfeiture of the

applicant’s pension, despite the mitigating circumstances in favour of the applicant, the Public Service Commission had not lawfully exercised its discretion. This was consequent upon the finding of the Court at first instance that the Public Service Commission had not exceeded the limits of its discretion in imposing the severest sentence of dismissal. The proportionality of the sentence therefore was raised only as a matter of public law as to the limits of administrative discretion which defined its legality and was not raised as a matter of administrative action violating the right to property. This was an entirely different matter. And it meant that the Supreme Court in its appellate jurisdiction, as the comptent Cypriot Court, being asked to concern itself with the limited issue of administrative law, was never invited to consider the legality of dismissal as regards proportionality under Article 12 (3) of the Constitution and by equivalence, the compatibility of dismissal with Article 1 of Protocol No. 1 in terms of the extent to which an interference with property rights may be justified in the public interest.

Furthermore and most important, ground (d) was raised as ground (5) of the appeal. However, ground (5) was also expressly withdrawn and was never argued or adjudicated upon. The record is clear throughout as to this. At the outset of his address at the first hearing of the appeal, learned counsel for the applicant declared that he would deal only with grounds 3 and 4 of the appeal. Asked by the Court whether he withdrew the other grounds he replied affirmatively, whereby the Court dismissed the other grounds 1, 2 and 5 and preceeded to hear learned counsel only on grounds 3 and 4. Indeed, learned counsel could not thereafter have argued ground 5 since this had already been dismissed by the Court as withdrawn. The reference of the applicant in paragraph 72 of his observations to learned counsel saying later on that “I shall deal with the amended grounds 3 and 4 and thus ground 5 emanating from them” is entirely out of context and does not have the meaning which the applicant suggests, as evidenced by the Court’s immediately following observation that he was referring to grounds 3 and 4 of the appeal, that the Public Service Commission, failing to take properly into account the mitigating circumstances in favour of the applicant, had not lawfully exercised its discretion as to the appropriate disciplinary sentence in all the circonstances. Learned counsel argued that Law 33/67 provided ten alternative disciplinary sentences and that the Public Service Commission ought not, in the mitigating circumstances, to have chosen the severest one of dismissal, but could have chosen the sentence of compulsory retirement instead. It was in this context and in this context only that he referred to the forfeiture of the applicant’s retirement benefits upon dismissal, in order to show that dismissal, involving the forfeiture of retirement benefits, was too severe and disproportionate a sentence to impose in the circumstances, and not in order to dispute the constitutionality of forfeiture of retirement benefits upon dismissal. This was made absolutely clear throughout the address and was confirmed by learned counsel when asked specifically by the Court at the end of his address, saying that his reference to the forfeiture of retirement benefits upon dismissal was in order to show that the sentence of dismissal which was imposed was disproportionately severe in the circumstances and a lighter sentence should have been imposed instead. Learned counsel also made it clear in his reply that “Whatever I said about pension and the others was in order to show the severity and the terrible consequences of this decision upon the applicant’s life”. The same line was followed during the second hearing of the appeal, when learned counsel agreed and reaffirmed that he had withdrawn grounds 1, 2 and 5 and only argued grounds 3 and 4, repeating in effect what he had said at the first hearing of the appeal as to grounds 3 and 4. When at the end of his address he concluded saying that the disciplinary sentence of dismissal, with the consequent forfeiture of retirement benefits, made the sentence especially onerous, he clarified, in answer to the Court, that his argument was limited to showing that the sentence of dismissal imposed was, in the circumstances, disproportionate to the severity of the offense. Consequently, the Court itself in its judgment did not deal with ground 5 but only with grounds 3 and 4 of the appeal.

It is clear from the above that, as the Government submit, the issue wich is now raised in the application as to the alleged violation of a property right under Article 1 of Protocol No. 1 was expressly withdrawn by the applicant as an issue from the consideration of the comptent Cypriot courts and was never raised, argued or adjudicated upon even to the remotest extent before them. I cannot agree with the submission of the applicant in paragraphs 67 and 72 of his observations that, though ground 5 of the appeal was withdrawn, the legality of the provision of Law 33/67 for forfeiture of retirement benefits upon dismissal was substantially brought before the Court through grounds 3 and 4 of the appeal. Grounds 3 and 4 of the appeal, which have already been discussed, did not, directly or indirectly, expressly or implicitly, raise this issue. On the contrary, grounds 3 and 4 of the appeal, and the entire arguments proposed to support them at the hearing, presuppose the legality of the provisions of Law 33/67 for forfeiture of retirement benefits upon dismissal and proceed on the basis that, because dismissal carries with it the serious consequence of forfeiture of retirement benefits, it was a sentence disproportionate to the seriousness of the offense in the circumstances, particularly in view of the mitigating factors in favour of the applicant. The applicant never argued, and the Cypriot courts consequently never judged, the legality of the provision of Law 33/67 in relation to Article 23 (1)(2) of the Constitution, which is the equivalent of Article 1 of Protocol No. 1.

It is my conclusion that the applicant did not contest, even indirectly or implicitly, the legality of Law 33/67 because he expressly withdrew and never argued the relevant ground 5 of his appeal and grounds 3 and 4 of his appeal did not cover, even implicitly or remotely, ground 5 but were on the contrary based on the legality of Law 33/67.

It is therefore my considered opinion that the dispute in the proceedings before the Cypriot courts did not concern the legality of the provision of Law 33/67 as to forfeiture of retirement benefits upon disciplinary dismissal by reference to its constitutionality (Article 23 (1)(2) of the Constitution) and consequently by equivalence its compatibility with Article 1of Protocol No. 1. It follows that there was no exhaustion of domestic remedies, which precludes the applicant from raising before this Court a complaint which he chose to withdraw from resolution by the competent domestic court, which he consequently did not argued before such competent domestic court and which, also consequently, such competent domestic court could not and did not consider and adjudicate upon. I would therefore adjudge inadmissible the complaint that there was a violation of Article 1 of Protocol No. 1.

However, in so far as I am in a minority on the matter, I shall also consider the further issues raised. I would have agreed, if I had considered the complaint admissible, that the right to a pension based on employment can, even though the public servant does not make contributions under a pension scheme, amount to a property right and thus to a “possession” within Article 1 of Protocol No. 1, when, as in the present case, the employment was entered into in circumstances involving a general undertaking that a pension would be payable as an integral part of the conditions of service. As to the other aspect of Article 1, that is, whether the forfeiture of the applicant’s pension, as a possession, consequent upon his dismissal could be justified in the public interest by way of exception, I feel that there are strong arguments on both sides. On the one hand, the applicant’s misconduct was particularly reprehensible as an abuse of his position and involving the loss of enormous sums of money and could be said to justifiably attract the most serious sanction provided by law. On the other hand, other sanctions had been imposed upon the applicant, namely a sentence of imprisonment upon his criminal conviction and his dismissal from service, which, as of their nature and extent, expressed the public interest involved and could be said to render the sanction of loss of pension unnecessary. In view of my conclusion that the complaint is inadmissible in any case, I shall not express an opinion on the matter.