KONSTANTINOU AND OTHERS v. CYPRUS
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev
1. The eight applicants in this case are all Cypriot nationals and retired army colonels. Their case concerns the conditions under which they retired from the Cypriot National Guard. They are represented before the Court by Mr A. Markides, a lawyer practising in Nicosia with Markides Markides & Co. A list of the applicants is set out in the appendix. 2. At the material time the conditions of service of commissioned army officers in the Cypriot National Guard, including matters of promotion and retirement, was regulated by the Army of the Republic Law of 1990 and by the Officers of the Army of the Republic (Appointments, Hierarchy, Promotions and Retirements) Regulations of 1990–2002 (“the Regulations”). 3. Pursuant to the Regulations, each officer was subject to an annual performance review by the Army’s Supreme Evaluations Board. Under Regulation 14(3) and (4), that review would lead to one of four category ratings/outcomes: (i) the officer being promoted; (ii) the officer being confirmed in the post at the same rank; (iii) the officer being deemed to have “successfully terminated his or her career”. This would be the case if he or she did not meet the criteria either for promotion or confirmation in post (i.e. categories (i) and (ii) above) and his or her further service would hinder the advancement of younger officers; or (iv) the officer being retired. This would be the case when it was not considered appropriate for the officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications. 4. As a means of allowing officers of lower ranks to advance to higher ranks, Regulation 18(1) provided that, of the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within categories (iii) and (iv). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1), the Supreme Evaluations Board should accord priority to requests from officers for retirement on the basis of having successfully terminated their career. 5. Regulation 19(1)(b) and (c) of the Regulations sets out the terms on which an officer falling within categories (iii) and (iv) would leave the army. 6. For colonels, this regulation provided that a colonel who received a category (iii) rating would be promoted one rank, that is to brigadier, on the day proceeding his or her retirement. His or her pension would then be calculated based on the salary a major general (one rank higher than a brigadier) received at the full age of retirement. The officer would also receive a lump sum payment calculated with reference to his or her pension. 7. By contrast, a colonel compulsorily retiring with a category (iv) rating would do so at his or her existing rank. His or her pension would be calculated based on the salary of a brigadier at full retirement age and the lump sum payment would be calculated with reference to his or her pension. Thus the pensions and lump sum payments would be higher for a colonel on a category (iii) rating than a category (iv) rating. 8. The applicants were all colonels in the Cypriot National Guard. Between February 2003 and February 2004, they submitted requests for retirement on the basis of having successfully terminated their career, pursuant to Regulations 14(4)(c) and 18(2). Their written requests specified that these were without prejudice to any legal rights which might arise from any declarations of unconstitutionality or nullity of the Regulations. 9. The Supreme Evaluations Board considered the requests of the first five applicants at its annual meeting on 9 May 2003; it considered the remaining requests on 9 March 2004. It approved all eight requests and the applicants were consequently deemed to have successfully completed their military careers. In accordance with Regulation 19, the applicants were promoted from colonel to brigadier with effect from the day before their retirement, and their pensions and lump sum payments were determined with reference to the salary of a major-general. 10. In 2002, the Supreme Evaluations Board gave category (iii) ratings to a number of officers who had held the same rank and who had completed the same number of years of service as the applicants. These officers had not submitted requests for voluntary retirement: the category (iii) rating was the result of their annual performance review. 11. These officers applied to the Supreme Court for annulment of the Board’s decisions claiming that they deserved a higher rating. 12. On 15 September 2004, the Supreme Court annulled the Board’s decisions, finding that the Board had failed properly to examine whether the conditions in the 2002 Regulations had been met. The court found that it was not open to the Board to find that officers would not qualify for receiving category (i) or (ii) ratings simply in order to fill the 30-40% quota for category (iii) ratings set out in the Regulation 18(1). 13. Further to the decision, the Ministry of Defence made settlement offers to the officers concerned. The offers included the following terms: (i) the officers would be re-evaluated for the years 2002-2004 and, as a result, some of them would be promoted from colonel to brigadier. (ii) the officers would receive an ex gratia payment of CYP 4,000 (EUR 6,834) for each year they would have served before reaching the age of mandatory retirement which applied to their new ranks (sixty years of age for brigadiers as opposed to fifty-eight for colonels). 14. Having accepted these settlement offers, the officers submitted requests for voluntary retirement. These requests were accepted by the Ministry of Defence and they retired in April 2005. 15. On 23 January 2006, the applicants wrote to the Minister of Defence requesting that the offers made to their fellow officers should also apply to them since their requests for voluntary retirement had been made without prejudice (see paragraph 8 above). 16. The Minister rejected the applicants’ request on 17 February 2006, relying on legal advice to the effect that the Supreme Court’s decision of 15 September 2004 had not annulled the 2002 Regulations and the settlement the Ministry had reached with the other officers was in conformity with the Supreme Court’s decision. 17. The applicants challenged the Minister’s refusal before the Supreme Court, submitting that it was contrary to the principles of equality and nondiscrimination enshrined in Article 28 of the Constitution (see paragraphs 20 and 21 below). 18. On 20 July 2007 a single judge of the Supreme Court annulled the Minister’s decision. The judge noted that the Minister had accepted that the applicants were in an equivalent position to their fellow officers in terms of rank and years of service, but had submitted that there was a reasonable distinction between the two groups: the latter group had sought to vindicate their rights through the courts and thus the extra benefits they had received were provided pursuant to Article 146(6) of the Constitution (the right to damages in administrative recourse proceedings before the Supreme Court: see paragraph 22 below). The judge found that the only distinction between the two groups was that the other officers had submitted their requests for voluntary retirement after succeeding in their applications to the Supreme Court. There was thus no reasonable distinction between those officers and the applicants and, in the applicants’ case, there had been a violation of Article 28 of the Constitution. 19. The Minister appealed against the decision of the single judge to the plenary of the Supreme Court and, on 14 June 2011, the plenary court allowed the Minister’s appeal (appeal no. 131/2007). The court found that applicants had accepted the terms of their retirement unconditionally and without reservation. By contrast, the other officers had contested the legality of the Board’s decisions in their cases and they had subsequently received benefits that were determined in light of the Supreme Court’s judgment annulling the Board’s decisions. In addition, the other officers had continued to serve in the National Guard while their appeal to the Supreme Court had been pending and until they accepted the settlement offers made by the Ministry of Defence. The context surrounding the two groups of officers was different and therefore there had been no discrimination contrary to Article 28. 20. Article 28(1) of the Constitution provides that everyone shall be equal before the law, administration and justice, and everyone shall be entitled to equal protection and treatment. Article 28(2) protects against direct and indirect discrimination on ground of 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 the Constitution. 21. Article 28 of the Constitution is not absolute and reasonable distinctions in treatment may be made when the special circumstances of a case so require (see, inter alia, among others, Soteriades v Theofylaktou and others (2002) 3 A.A.D 56; Theocharides v the Republic (1998) 3 A.A.D 63). 22. Article 146(1) provides for recourse against administrative decisions to the Supreme Court. Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null and void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)). Article 146(6) provides for compensation in such proceedings in the following terms: “Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.” 23. The relevant provisions of these Regulations are as follows. 24. Regulation 12 provided for the annual evaluation of army colonels and brigadiers. 25. Regulation 14(3) provided that, for such officers, their evaluations would fall into one of four categories: promotion; confirmation (i.e. being confirmed in post at the same rank); being deemed to have successfully terminated his or her career; or retirement. Regulation 14(4) set out the criteria for the four possible evaluations. For promotion or confirmation in post, an officer was required to meet certain merits-based criteria, including grade of at least “very good” in the relevant assessments (Regulations 14(4)(a) and (b)). Regulation 14(4)(c) provided that the officer would be deemed to have successfully terminated his or her career if he or she did not meet the requirements for promotion or confirmation in post and his or her further service would hinder the normal advancement of younger officers. Regulation 14(4)(d) provided for retirement when it was not considered appropriate for an officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications. 26. Regulation 15 provided that senior officers evaluated by the Supreme Evaluations Board as falling within Regulation 14(4)(c) or (d) (i.e. receiving a category (iii) or category (iv) rating) would have to leave the army. 27. Regulation 18(1) provided that for the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within Regulation 14(4)(c) or 14(4)(d). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1) the Supreme Evaluations Board should accord priority to requests for retirement on the basis of having successfully terminated their career. 28. As stated at paragraphs 5–7 above, the different pension benefits for senior officers leaving the army with category (iii) and category (iv) ratings were set out in Regulations 19(1)(b) and 19(1)(c) respectively.