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1. The author of the
communication is Mr. Savvas Karatsis, a Cypriot national, born on 23
December 1952. He claims to be a victim of a violation by Cyprus [FN1] of
article 14, paragraph 1, read alone and in conjunction with article 2,
paragraph 3, of the Covenant. In a subsequent submission (see para. 5.1), he
also claims a violation of his rights under article 25 (c) of the Covenant.
The author is represented by counsel, Mr. Achilleas Demetriades.
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[FN1] The Covenant and the Optional Protocol thereto entered into force for
Cyprus respectively on 23 March 1976 and 15 July 1992.
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FACTUAL BACKGROUND
2.1 On 11 January 1994, the author was appointed to the post of Family Court
judge, a position that he continues to hold until today. In June 2000, he
applied for a vacant post of District Court judge offering better promotion
opportunities, a higher salary scale and higher pension benefits. On 12 July
2000, the Supreme Council of Judicature ("the Supreme Council"), a panel
responsible for the appointment and promotion of judges under the
Administration of Justice Law (1964), whose 13 members also sit as Supreme
Court of Cyprus, selected the author for a temporary post as District Court
judge for a period of one year from 1 October 2000, subject to the condition
that he would resign from his post of Family Court judge before taking up
his function at the District Court. At the end of that period, the Supreme
Council would decide about his appointment as permanent judge and civil
servant.
2.2 On 14 July 2000, acting on instructions from the Supreme Court, the
Chief Registrar communicated with the author. After the author had accepted
the conditions of appointment, including his prior resignation from the post
of Family Court judge, the Chief registrar sent him an offer of appointment
to the post of District Court judge (with the starting salary of the scale
for District Court judges) and advertised the author's post of Family Court
judge. By letter of 19 July 2000, the author accepted the written offer of
appointment, which did not contain a proviso on his resignation from the
post as Family Court judge.
2.3 On 26 September 2000, the Chief Registrar sent the author the following
letter together with the document of his appointment to the temporary post
of District Court judge:
"Further to the letter offering appointment dated 13 July 2000 and its
acceptance by you by your letter dated 19 July 2000, I forward to you the
relevant document of your appointment to the post of temporary district
judge.
1. It is noted that, as you have been informed, a prerequisite to your
appointment is your resignation from the post of judge of the Family Court
before the assumption of your duties.
2. Provided the above [is] observed, you will take the judicial oath and
will give the affirmation to the Republic for the post of temporary district
judge next Monday, 2 October 2000, at 8.00 a.m. at the Supreme Court."
2.4 On 2 October 2000, the author objected to the condition of prior
resignation from his post as Family Court judge, which he believed to have
been dropped, as it had not been included in the written offer of
appointment. He argued that such resignation would result in a reduction of
his annual salary by CYP£ 10,000.00, loss of benefit of his more than six
years of service in the Family Court, including loss of his pension
benefits, and uncertainty of tenure as it was not sure whether he would be
permanently appointed at the end of the one-year period. He would only
accept the "new condition" of prior resignation in the event of permanent
appointment to the post of District Court judge on a scale which corresponds
to the salary of a Family Court judge with more than six years' service and
if any acquired rights were preserved.
2.5 On the same day, the Chief Registrar informed the author that his
appointment had been revoked, as he did not accept the conditions of such
appointment. On 4 December 2000, the author filed a complaint with the
Supreme Court, challenging the Supreme Council's notification of 26
September 2000 on the basis that it purported unilaterally to change the
terms of his employment contract. The author also challenged the Council's
decision of 2 October 2000 revoking his appointment. The case was first
referred to a single judge of the Court but later assigned to the full
Supreme Court by the Chief Registrar. On 23 January 2001, the author, by
reference to Article 153(9) [FN2] of the Constitution of Cyprus, applied for
his case to be heard by a different bench, arguing that the 13 judges of the
Supreme Court were the very authors of the impugned decisions, which they
had taken in their capacity as members of the Supreme Council.
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[FN2] Article 153(9) of the Constitution of Cyprus reads: "In the case of
temporary absence or incapacity of the President of the High Court or of one
of the Greek judges or of the Turkish judge thereof, the President of the
Supreme Constitutional Court or the Greek judge of the Turkish judge
thereof, respectively, shall act in his place during such temporary absence
of incapacity. Provided that it is impracticable or inconvenient for the
Greek or the Turkish judge of the Supreme Constitutional Court to act, the
senior in office Greek or Turkish judge in the judicial service of the
Republic shall so act respectively."
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2.6 By judgment of 15 March 2001, the Supreme Court dismissed the case for
want of jurisdiction without addressing the issue of impartiality. [FN3] It
held that the appointment of judges is an exercise of the judicial rather
than the executive or administrative power, thus falling within the
exclusive competence of the Supreme Council and outside the Supreme Court's
jurisdiction under Article 146 of the Constitution of Cyprus. [FN4]
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[FN3] The Court recalled that "[i]t is up to the court, which is legally
competent under the law, to decide whether the subject matter of an
application comes under its jurisdiction. This matter takes precedence over
any other. Once it is considered that the court has jurisdiction to deal
with the subject matter of an application, then the question of excluding
judges who will exercise the court's jurisdiction is examined." Supreme
Court of Cyprus, case No. 1547/2000, Savvas Karatsis v. The Republic,
Judgment of 15 March 2001.
[FN4] The Supreme Court referred to its previous judgment in Antonios
Kourris v. The Supreme Council of Judicature (1972) 3 CLR, 390.
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2.7 On 25 May 2001, the author filed an application with the European Court
of Human Rights, alleging that the Supreme Court's lack of impartiality, the
denial of an effective remedy to challenge the Supreme Council's decision
and the reduction of his salary and pension benefits in the event of his
resignation from the post of Family Court judge violated articles 6 and 13
of the European Convention on Human Rights and article 1 of Protocol No. 1
to the Convention.
2.8 On 31 May 2001, the European Court's Registrar informed the author of
the possible obstacles to the admissibility of his application, namely the
inapplicability of articles 6 and 13 of the Convention to public law
disputes irrespective of pecuniary character, as well as the inapplicability
of article 1 of Protocol No. 1 in the light of the fact that the author had
not been deprived of his pension rights as a Family Court judge and that he
had not acquired any such rights as a District Court judge.
2.9 On 14 June 2001, the author insisted on registration of his application,
arguing that the State party cannot deny him judicial review on the basis
that the appointment of judges, unlike that of civil servants, comes within
the competence of the judicial rather than the administrative power, and at
the same time benefit from the exemption of disputes concerning civil
servants from the scope of article 6. Otherwise, he would be left without
any remedy.
2.10 On 27 September 2001, the European Court declared the application
inadmissible under Article 35, paragraph 4, of the Convention, as it did not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention.
THE COMPLAINT
3.1 The author claims that the fact that the Supreme Court's decision not to
hear his case was taken by the same judges who, in their capacity as members
of the Supreme Council, had revoked his temporary appointment as District
Court judge deprived him of his rights to a fair and public hearing before
an impartial tribunal and to an effective remedy, in violation of article
14, paragraph 1, read alone and in conjunction with article 2, paragraph 3,
of the Covenant.
3.2 On impartiality, the author recalls the Committee's jurisprudence [FN5]
that judges must not harbour any preconceptions about the matter placed
before them. The fact that neither the Attorney General, who usually
represents the State in court proceedings, nor the Supreme Council as
respondent filed an appearance before the Supreme Court illustrated that the
13 judges on the Supreme Court were judges in their own cause.
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[FN5] Communication No. 387/1989, Karttunen v. Finland, Views adopted on 5
November 1992, at para. 7.2.
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3.3 According to the author, the issue of impartiality is of such importance
as a prerequisite for a fair trial that it should be considered before any
other issue including that of jurisdiction. Instead of dismissing his case
on grounds of jurisdiction, the Supreme Court judges should first have been
replaced by another bench under the procedure provided for in Article 153(9)
of the Constitution.
3.4 The author argues that the guarantees of article 14, paragraph 1, apply
to all court proceedings, whether civil, criminal or administrative, as long
as they involve a determination of one's rights and obligations in a suit at
law.
3.5 With regard to article 2 of the Covenant, the author submits that the
Supreme Court's failure to give effect to his rights under article 14,
paragraph 1, deprived him of the only effective remedy available under
Cypriot law.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 On 2 December 2003, the State party challenged the admissibility and,
subsidiarily, the merits of the communication, arguing that the author's
claim under article 14, paragraph 1, is inadmissible ratione materiae under
article 3 of the Optional Protocol and that, as a consequence, article 2 of
the Covenant does not apply.
4.2 The State party recalls the Committee's jurisprudence [FN6] that the
procedure of appointing judges does not come within the purview of a
determination of rights and obligations in a suit of law within the meaning
of article 14, paragraph 1, of the Covenant. In relation to the largely
congruent provision of article 6, paragraph 1, of the European Convention,
the European Commission [FN7] has decided that disputes concerning the
judiciary, despite their independence from the executive branch, fall
outside the scope of article 6. The European Court, since Pellegrin v.
France, FN8 has applied a "functional criterion" to exclude from the scope
of article 6, paragraph 1, any disputes concerning the appointment,
promotion or dismissal to or from posts involving participation in the
exercise of powers conferred by public law.
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[FN6] See Communication No. 972/2001, George Kazantzis v. Cyprus, decisions
on admissibility adopted on 7 August 2003, at para. 6.5.
[FN7] X v. Portugal (1983) 32 DR, at p. 258.
[FN8] Application No. 28541/95, Judgment of 8 December 1999.
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4.3 The State party submits that the author's claim related to article 2 of
the Covenant should also be dismissed, because that provision can only be
invoked in conjunction with a substantive Covenant right.
4.4 On the merits, the State party argues that the author's allegations
about the lack of impartiality of the Supreme Court judges and the denial of
a fair hearing are merely conjectural, given that the Supreme Court (in
whatever composition) was bound by its previous judgment in Kourris v. The
Supreme Council of Judicature [FN9] to dismiss his complaint for want of
jurisdiction under Article 146 of the Constitution. The author's rights
under articles 2 and 14, paragraph 1, of the Covenant had therefore not been
violated in any event.
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[FN9] See above, at footnote 4.
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AUTHOR'S COMMENTS
5.1 On 2 February 2004, the author commented on the State party's
observations and amended the communication by claiming also a violation of
article 25 (c) of the Covenant. He submits that his case relates to the
procedural fairness of the Supreme Court proceedings rather than to the
fairness of their outcome. These proceedings had to be distinguished from
Kazantzis v. Cyprus, which related to the decision of the Supreme Council of
Judicature itself, a non-judicial body, to reject the appointment of an
applicant from outside the judiciary to the post of District Court judge.
5.2 The author considers that his case is similar to Casanovas v. France
[FN10] and Chira Vangas v. Peru, [FN11] as it concerns the terms of his
employment within the judiciary, conveying more favourable career prospects,
salary and pension benefits in the event of his appointment to the post of
District Court judge. He recalls that the concept of "suit at law" under
article 14, paragraph 1, is based on the nature of the right in question
rather than the status of one of the parties, and concludes that his claim
under that article is admissible ratione materiae.
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[FN10] Communication No. 441/1990, Views adopted on 19 July 1994.
[FN11] Communication No. 906/2000, Views adopted on 22 July 2002.
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5.3 The author reiterates that the Supreme Court's lack of impartiality
touched upon principles of natural justice and should therefore have been
considered before any jurisdictional questions arising under domestic law.
The Committee should take the view that article 14, paragraph 1, has been
violated.
5.4 By reference to Kazantzis v. Cyprus, the author submits that the
procedure for appointing judges falls within the scope of article 25 (c) of
the Covenant. He contends that the revocation of his appointment to the post
of District Court judge breached his right under that article to access, on
general terms of equality, to public service.
5.5 The author claims that the dismissal of his complaint by the Supreme
Court also deprived him of his right to access to an effective remedy, in
violation of article 14, paragraph 1, and 25 (c) in conjunction with article
2 of the Covenant.
5.6 As a remedy, the author claims that the proceedings be revived and a
differently composed Supreme Court deal first with the issue of impartiality
of the 13 Supreme Court judges who dismissed his complaint. He also claims
adequate compensation for the loss suffered in terms of career
opportunities, salary and pension befits, as well as for his legal expenses.
Issues and proceedings before the Committee
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 With regard to the author's claim under article 25(c) of the Covenant,
the Committee notes the absence of any information on comparable cases, in
which candidates were appointed to the post of District Court judge, or on
any prohibited grounds of discrimination, on the basis of which the author
would have been denied access to that post. It therefore considers that the
author has not substantiated his claim that he was denied access, on general
terms of equality, to public service for purposes of admissibility.
Consequently, this part of the communication is inadmissible under article 2
of the Optional Protocol.
6.3 As to the author's claim under article 14, paragraph 1, the Committee
observes that, in contrast to Casanovas v. France and Chira Vargas v. Peru,
the present case concerns the revocation of an appointment to another post
within the judiciary rather than the dismissal from public service. The
Committee recalls that the concept of "suit at law" under article 14,
paragraph 1, is based on the nature of the rights in question rather than
the status of one of the parties. [FN12] It also recalls that that the
procedure of appointing judges, albeit subject to the right in article 25(c)
to access to public service on general terms of equality, as well as the
right in article 2, paragraph 3, to an effective remedy, does not as such
come within the purview of a determination of rights and obligations in a
suit at law within the meaning of article 14, paragraph 1.
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[FN12] Communication No. 112/1981, Y.L. v. Canada, decision on admissibility
adopted on 8 April 1986, at para. 9.2; Communication No. 441/1990, Casanovas
v. France, at para. 5.2.
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6.4 The issue before the Committee is therefore whether the proceedings
initiated by the author to challenge the revocation of his appointment to
the post of District Court judge constituted a determination of his rights
and obligations in a suit at law. The Committee recalls that the author
chose not to resign from his post as Family Court judge to prevent a
substantial reduction in his annual salary, exclusion of his years of
service at the Family Court from the calculation of his pension benefits, as
well as uncertainty of tenure. It notes that the author entirely preserved
these acquired rights and considers that his claim concerning the loss of
career prospects and possible increases in salary and pension benefits
caused by the revocation of his appointment is merely hypothetical.
Similarly, he has failed to substantiate any violation of his right under
article 25(c) to equal access to public service. [FN13] The author has
therefore not substantiated that the proceedings initiated by him
constituted a determination of his rights and obligations in a suit at law
within the meaning of article 14, paragraph 1.
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[FN13] See above, at para. 6.2.
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6.5 While the revocation of appointments within the judiciary must not
necessarily be determined by a court or tribunal, the Committee recalls that
whenever a judicial body is entrusted under national law with the task of
deciding on such matters, it must respect the guarantee of equality of all
persons before the courts and tribunals as enshrined in article 14,
paragraph 1, and the principles of impartiality, fairness and equality of
arms implicit in this guarantee. [FN14] However, the author has not rebutted
the State party's argument that the Supreme Court's judgment in Kourris v.
The Supreme Council of Judicature was a binding precedent to the effect that
the Supreme Council's exercise of powers is not subject to judicial review
and falls outside the Supreme Court's jurisdiction under Article 146 of the
Constitution. Accordingly, the Committee considers that the Supreme Court
did not violate the guarantees of article 14, paragraph 1, when it declared
itself incompetent to deal with the author's case, given that Cypriot law
explicitly excluded the Court's jurisdiction to adjudicate the matter. The
initiation of proceedings before a judicial body that manifestly lacks
jurisdiction to deal with a matter cannot trigger the guarantees of Article
14, paragraph 1. The Committee concludes that this part of the communication
is therefore inadmissible ratione materiae under article 3 of the Optional
Protocol.
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[FN14] Cf. Communication No. 1015/2001, Perterer v. Austria, Views adopted
on 20 July 2004, at para. 9.2.
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7. The Human Rights Committee therefore decides:
a) That the communication is inadmissible under articles 2 and 3 of the
Optional Protocol;
b) That this decision shall be communicated to the State party and to the
author.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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