CASE OF JOSEPHIDES v. CYPRUS
(Application no. 33761/02)
6 December 2007
This judgment will become final in the circumstances set out in Article44 §2 of the Convention. It may be subject to editorial revision.
In the case of Josephides v. Cyprus,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
MrC.L. Rozakis, President,
MrG. Malinverni, judges,
MrS. Nielsen, Section Registrar,
Having deliberated in private on 15 November 2007,
Delivers the following judgment, which was adopted on that date:
1.The case originated in an application (no. 33761/02) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Christos Josephides (“the applicant”), on 11 September 2002.
2.The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
3.On 15 December 2005 the Court decided to communicate to the Government the applicant's complaint under Article 6 § 1 of the Convention as to the length of the proceedings firstly, concerning the appointment of the applicant to the post of First Officer of Town Planning and secondly, concerning the post of Director of Town Planning. Furthermore, the Court decided to communicate to the Government the applicant's complaint under the same provision concerning lack of impartiality in the second set of the proceedings due to the participation of two judges on both the Supreme Court bench examining the interim appeal and the final appeal. Applying Article 29 § 3 of the Convention, the Court decided to rule on the admissibility and merits of the application at the same time.
I.THE CIRCUMSTANCES OF THE CASE
4.The applicant was born in 1944 and lives in Athienou.
A.Proceedings concerning the withdrawal of the proposal for the filling of the post of First Officer of Town Planning by the Public Service Commission.
5.On 8 March 1989 the applicant applied for the vacant post of First Officer of Town Planning. On 8 June 1989 the Public Service Commission (hereinafter “the Commission”), responsible for the recruitment of officers in the public service, decided to appoint the applicant to the post. However, before the decision was communicated, it was suspended and then, on 14August 1990 the applicant was informed that the Commission had decided to withdraw the proposal for the filling of the above post.
1.Proceedings before the Supreme Court (first instance administrative jurisdiction) - recourse no. 795/90
6.The applicant filed a recourse (recourse no.795/90) for the annulment of this decision before the Supreme Court (first instance administrative jurisdiction).
7.On 3 December 1992 the Supreme Court declared the above decision null and void. It found that the decision to withdraw the proposal for the filling of the post had been ultra vires since it had had the clear purpose of preventing the applicant's appointment to that post.
2.Proceedings before the Supreme Court (revisional administrative jurisdiction) - appeal no. 1720
8.The Government lodged an appeal (no. 1720) before the Supreme Court (revisional administrative jurisdiction).
9.In the meantime, the Commission in a decision dated 8 March 1993 noted that if the appeal was unsuccessful the procedure for filling of the post of First Officer of Town Planning would have to be re-examined and any possible decision of the Commission that the applicant was qualified would be binding also for the procedure for the post of Director of Town Planning.
10.On 5 October 1994 the appeal was dismissed.The Supreme Court upheld the first instance judgment.
11.The composition of the Commission changed and the new Commission members requested the Law Office of the Republic for advice concerning the procedure to be followed in the light of the Supreme Court's judgment of 5 October 1994.
12.The Attorney-General of the Republic provided the Commission with an advisory opinion in two letters dated 22 December 1995 and 4January 1996.
13.On 5 January 1996 the Commission, considering that it was bound both by the Supreme Court's judgment of 5 October 1994 and the advisory opinion given by the Attorney-General, appointed the applicant to the post of First Officer of Town Planning retrospectively as from 1 July 1990. This was in spite of the fact that in its decision it noted that it disagreed with the former Commission that the applicant had the required qualifications for the post. In the relevant letter dated 9 January 1996 the applicant was informed that he would be compensated for the period from 1 July 1990 until the date he took over his new duties for the difference between the salaries. Following a successful recourse before the Supreme Court, the date of commencement of his new appointment was set as 1 July 1989. The applicant claimed that only one third of the due salaries had been paid to him.
14.On 16 February 1996 the applicant's appointment was published in the Official Gazette of the Republic.
B.Proceedings concerning the appointment of the applicant to the post of First Officer of Town Planning
1.Proceedings before the Supreme Court (first instance administrative jurisdiction) - recourse nos. 348/96, 349/96 and 365/96
15.In 1996 the Cyprus Association of Town and Country planning and two other candidates for the post of First Officer of Town Planning filed three recourses (nos.348/96, 349/96 and 365/96) before the Supreme Court (first instance administrative jurisdiction) against the Government, through the Commission, seeking the annulment of the applicant's appointment. The recourses were filed on 25 April 1996, 30 April 1996 and 20November 1996 respectively. The applicant took part in the proceedings as an interested party.
16.The Government filed their opposition on 23 October 1996 and the applicant on 20 November 1996.
17.On 16 December 1996 the Supreme Court joined all the above recourses. Furthermore, on that date, the Supreme Court ordered the reinstatement of recourse 348/96 which it had dismissed earlier. The proceedings were then fixed for instructions for 25 February 1997.
18.The applicants in the recourses filed their written addresses on 25February 1997, the Government on 29 May 1997 and the applicant on 7July 1997. The applicants in the recourses filed their reply on 6 October 1997.
19.On 15 December 1997 the applicant raised a preliminary objection that the recourses had not been lodged within the prescribed time-limit. The court fixed the objection for a hearing for 4 February 1998. The hearing took place on that date and on 24 February 1998, the Supreme Court rejected his objection by an interim judgment.
20.On 6 March 1998 the applicant filed an appeal challenging this interim judgment (appeal no. 2594). The Chamber was composed of five judges, namely, President Nikitas and Judges Constantinides, Nicolaides, Kallis and Gavrielides. The applicant submitted that the latter judge had been his colleague at the Law Office of the Republic and that their relations had been cold for reasons unknown to the applicant.
21.On 13 April 1998, at the hearing of the main recourse, the applicant's representative invited the Supreme Court to adjourn the first instance proceedings pending the outcome of the appeal concerning the interim judgment in order to avoid a conflict. The court considered that it would be more correct to fix the main recourse for trial once the appeal against the interim judgment was decided on. It therefore requested that the recourses be put before the court for the purpose of fixing a hearing after the determination of the appeal.
22.On 22 December 1999 the Supreme Court dismissed the appeal. In its judgment the Supreme Court only dealt with the question of whether a right of appeal existed against an interim decision. In this respect it noted that in line with the well-established jurisprudence such a right existed only in relation to interim decisions which were determinative of the rights or obligations of the litigants. Otherwise, interim decisions which were not determinative of the rights or obligations of the litigants, as long as they could affect the result, could be reviewed in the context of an appeal against the final first instance judgment. It then found that the interim decision challenged by the applicant fell in the latter category and dismissed the arguments advanced by the applicant to the contrary. The Supreme Court's judgment was confined to this question.
23.On 28 February 2000 the Supreme Court (first instance) fixed the recourses for directions for 23 March 2000.
24.On 19 May 2000 the applicants in the recourses filed their reply and the case was fixed for 13 October 2000 for any oral addresses. On the latter date the relevant administrative files were deposited before the court and the hearing of the oral addresses was adjourned until 23 October 2000 in view of the fact that the lawyer of the applicants in the recourse had been injured.
25.On 23 October 2000 the Supreme Court heard the parties' oral addresses and reserved its judgment.
26.On 31January 2001 the Supreme Court annulled the decision of the Commission to appoint the applicant. It found that the newly composed Commission had wrongly considered that it had been bound to follow the Attorney-General's advisory opinion (see paragraphs 13 and 14 above) and had misinterpreted the ratio decidendi of the Supreme Court's judgment of 5October 1994 (see paragraph 11 above) and its legal effects. In particular, it was clear that the Commission had acted contrary to its judgment concerning the applicant's qualification because it had considered that it had been bound to appoint the applicant. The Commission, however, had not been obliged to follow the decision by the former Commission, which had remained an internal decision, and no such obligation could be derived from the Supreme Court's judgment. It had been open to the newly composed Commission to hold a new inquiry with respect to the qualifications of the applicant for the purpose of deciding whether the applicant was qualified for the relevant post.
27.The applicant submitted that he had then been informed that he had lost his post and that he had been offered a temporary employment contract instead.
2.Proceedings before the Supreme Court (revisional administrative jurisdiction) – appeal nos. 3190 and 3194
28.On 13 February 2001 the applicant and the Cypriot Government lodged appeals (nos.3190 and 3194) against the above judgment before the Supreme Court (revisional administrative jurisdiction).
29.In his appeal the applicant challenged the first instance judgment and the interim decision of 24 February 1998 dismissing his preliminary objection.
30.On 5 April 2001 the appeals were set for pre-trial directions for 11June 2001 before Judges Pikis, Artemides, Nicolaides, Iliades and Gavrielides.
31.The parties filed their written address outlines: the appellant Government on 6 July 2001, the applicant on 24 July 2001 and the respondents on 3 August 2001.
32.The appeals were then fixed for hearing for 2 November 2001 before Judges Pikis, Artemides, Nicolaou, Kallis and Kronides. According to the applicant, on that date Judge Kallis withdrew from the Chamber. He submitted that no explanations were given in this respect. As a result the hearing of the appeals was adjourned.
33.On 10 December 2001 the appeals were fixed for hearing for 1February 2002 before Judges Artemides, Constantinides, Iliades, Gavrielides and Hadjihambis. The applicant submitted that just before the pleadings he had orally requested the exclusion of Judges Constantinides and Gavrielides from the Chamber since they had been part of the Supreme Court bench that had delivered the judgment of 22 December 1999 in interim appeal no.2594 while the lawyer of the other parties had requested the exclusion of Judge Hadjihambis. The Supreme Court rejected these objections.
34.On 12 March 2002the Supreme Court delivered its judgment by which it dismissed the appeals by majority (Judges Artemides, Constantinides, Iliades and Gavrielides). Judge Gavrielides pronounced the judgment. The Supreme Court upheld the interim judgment of 24February 1998 (see paragraph 20 above) that the recourses had been lodged within the required time-limit. Furthermore, it upheld the findings of the first instance court in this respect finding that the newly composed Commission had not been bound by the conclusions or the decisions of the former Commission concerning the applicant's qualifications. Finally, it noted that it was not for the court to decide whether the applicant had the required qualifications but for the Commission.
35.Following the above judgment annulling the Commission's decision to appoint the applicant to the post of First Officer of Town Planning, the Commission held a new procedure for the filling of the post and decided that the applicant did not have the required qualifications and therefore debarred him from competing for the post.
36.The applicant submitted that he had been informed that the wife of one of his brothers had sent a letter dated 25 January 1996 to Judge Gavrielides demanding the payment of rents concerning an apartment in Nicosia for which that judge had the keys and made personal use of following the departure of the tenant. The judge never replied to the letter and stopped using the apartment. The applicant also stated that the judge had some personal economic interests in the Town Planning Department and thus did not want the applicant to hold such a key post. He claimed that in another judgment adopted by the full bench of the Supreme Court in a different case Judge Gavrielides had not participated on the grounds that he had been a former colleague of the plaintiff.
C.Proceedings concerning the post of Director of Town Planning
37.On 11 September 1992 the post of Director of Town Planning was published and the applicant submitted an application. The required qualifications were the same as those of the First Officer of Town Planning.
38.On 21 April 1993 the Commission, whose composition had in the meanwhile changed (see paragraph 11 above), decided to exclude the applicant as non-qualified. By decision dated 14 July 1993 the Commission appointed another candidate to the post.
1.Proceedings before the Supreme Court (first instance administrative jurisdiction) - recourse no. 816/93
39.The applicant filed a recourse (no. 816/93) on an unspecified date in 1993 before the Supreme Court challenging this appointment.
40.On 14 March 2000 the Supreme Court declared the decision appointing the respondent as null and void. The court found that the Commission had been bound to consider the applicant as qualified for the post of Director in view of its decision of 8 March 1993 (see paragraph9 above). By deciding to appoint the applicant to the post of First Officer of Town Planning, the Commission had reversed its decision that he had not been qualified and had decided at the same time that he had had the qualifications for the post of Director as well.
2.Proceedings before the Supreme Court (revisional administrative jurisdiction) - appeal no. 3033
41.The respondent then lodged an appeal (no. 3033) before the Supreme Court.
42.On 2 October 2002 the Supreme Court delivered its judgment dismissing the appeal. The court noted that it disagreed with the meaning given by the majority of Supreme Court in its judgment of 12 March 2002 (see paragraph 34 above) of the judgment of the Supreme Court in its judgment of 5 October 1994 (see paragraph 10 above). Upholding the findings of the first instance court, it found that the Commission had bound itself to consider the applicant as qualified for the post of Director. In particular the Supreme Court observed that it respected the opposite view of the full court in its judgment of 12 March 2002 with regard to the significance of the decision by the Supreme Court in its judgment of 5October 1994. In particular they noted the following:
“We do not question the power which is recognised by the case law in the appointing body to re-investigate when a reason is established. This power, however, comes within the ambit of the principle of good faith and is not of unlimited scope. It depends on the circumstances. Our disagreement with the decision ... centres on the consideration and appraisal of the circumstances which form the foundation of the interpretation of the previous decision of the Full Court ... and not on a more general principle of jurisprudence”.
43.The Supreme Court observed that the judgment of the full court of 12 March 2002 delivered in appeal no.3190 concerning the procedure for the post of First Officer of Town Planning did not bind it as regards its judgment in relation to the procedure for the post of Director of Town Planning since it had examined its connection with the former judgment with reference to a prior time, on the basis of its understanding of the full court's judgment of 5October 1994. The difference in the result, however undesirable, had been nevertheless unavoidable.
II.RELEVANT DOMESTIC LAW AND PRACTICE
44.Article 30 (2) of the Cypriot Constitution provides as follows, in so far as relevant: