PAPAIOANNOU v. CYPRUS
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
The applicant, Mr Yiannakis Papaioannou, is a Cypriot national, who was born in 1967 and lives in Frenaros. He was represented before the Court by Mr A. S. Angelides, a lawyer practising in Nicosia. 1. The Physical Education Teachers’ Appointment List is used to fill vacancies for physical education teachers in the Cypriot public education system. The procedure for inclusion on the list is defined by section 28B of the Public Educational Service Law of 1969 (“the Law of 1969”) and is as follows. 2. The list is published every February. Those wishing to be included on the list must submit applications by the end of December of the previous year. The Educational Service Committee (“the Committee”) then examines the applications and ranks the candidates on the list. 3. A candidate’s position on the list is determined with reference to various criteria. For first-time candidates, their position is determined first, by the year they obtained their degree and then by other criteria which are set out in section 28B(3) of the Law such as their class of degree, whether they undertook military service, whether they have obtained any additional post-graduate qualifications and so on. For candidates who were already included on the list in previous years, their position on the new list is determined first, by the year they were first included on the list and, thereafter, by the other criteria set out in section 28B(3). 4. The applicant is a holder of a degree in Physical Education. He finished his studies in 1992, having previously deferred those studies in order to complete twenty-six months’ compulsory military service. The same year, he applied for inclusion on the list. His request was accepted by the Committee and he was included in the list for the year 1992. While it appears he did not apply for inclusion on the list every year thereafter, in 2008 he applied for inclusion in the 2009 list. 5. The Committee published its 2009 list on 27 February 2009. The applicant was placed 174th. He then filed a recourse before a single judge of the Supreme Court (revisional jurisdiction) seeking the annulment of the Committee’s decision to place him 174th. He submitted that section 28B of the Law of 1969 was unconstitutional. According to the applicant, by determining ranking on the list by reference to the year an applicant first applied to be on the list, section 28B created indirect discrimination against male candidates. This was because, unlike their female counterparts, male candidates had to complete twenty-six months’ military service prior to applying for registration. The effect of this was to provide a two-year head start in the rankings to women. 6. The Supreme Court at first instance upheld the applicant’s recourse and annulled the Committee’s decision. 7. The Government, on behalf of the Committee, appealed to the Supreme Court (revisional appeal jurisdiction) inter alia on the grounds that the court did not have jurisdiction to entertain the recourse. This was because, in the Government’s submission, the applicant had failed to prove that he was challenging an executory administrative act since he had failed to establish an appropriate comparison between his position and the position of other candidates on the list. Thus, according to the Government, the judgment of the Supreme Court at first instance was based on entirely hypothetical facts. The Government submitted that this was an issue which went to the core of the proceedings. 8. The applicant argued that the matter raised by the Government on appeal had not been raised in the first instance proceedings. In any case the applicant submitted that the Government’s submissions were groundless and should be rejected. 9. On 12 September 2011 the Supreme Court allowed the Government’s appeal. The court found that the applicant’s challenge to the Committee’s decision to rank him 174th on the list was not a valid recourse against an executory administrative act. This was because, by its nature, the Committee’s ranking decision was an act of comparison between candidates: it did not merely affect the position of one person on the list. The court could not annul the applicant’s position on the list without automatically affecting the position of other candidates. In his recourse the applicant should have set out the reasons why he considered the Committee’s decision was wrong and should have done so by a direct comparison with those candidates to whom the better rankings had been given. This would have given the other candidates an opportunity to set out their arguments or objections before the court and be heard, as required by the rules of natural justice. The fault in question went to the core of the recourse and could not be remedied. 10. For this reason, the Supreme Court did not examine the applicant’s complaints that the Law was unconstitutional and discriminatory; a decision on the admissibility of the recourse preceded such substantive issues. 11. Article 28 of the Constitution prohibits discrimination providing that: “1. All persons are equal before the law, the administration and justice, and are entitled to equal protection thereof and treatment thereby. 2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his 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 this Constitution. ...” 12. Article 146 of the Constitution states that the Supreme Court has exclusive jurisdiction to: “(1)...decide on a recourse filed against a decision... of an authority... exercising executive or administrative functions when such a decision is contrary to the constitution or the law or is made in excess or abuse of the powers vested in such body, authority or person. (2) Such a recourse may be made by a person whose existing legitimate interest ... is adversely and directly affected by such decision, act or omission. ...” 13. Article 8 of the above Law (“the 2002 Law”) where relevant provides: “(1) Men and women enjoy equal treatment, prohibiting any discrimination on the ground of gender – (a) In access to employment or to a job opening, permanent or temporary...; (b) in the definition and implementation of the terms and conditions of employment, including the qualifications and other terms and conditions and placement criteria...” 14. According to case law of the Supreme Court, only “executory administrative acts” can be the subject of a recourse to the Supreme Court under Article 146 of the Constitution (Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391). An executory administrative act is one which, inter alia, grant rights to individuals and creates obligations for the administration (see Ioanna Demetriou v. the Republic [1991] 4 A.A.D. 3029; and Fedias Stefanides and others v. Municipality of Engomi [1994] 3 A.A.D. 49). 15. Issues as to the admissibility of a recourse to the Supreme Court may be considered by the court of its own motion even if these are not raised by the parties (see Protopapas v. Republic [1967] 3 A.A.D. 411). 16. It is well-established that, where there is a dispute between various candidates on a list or where, for example, there is a selection process amongst a number of candidates for a particular post, a candidate wishing to challenge the validity of the administrative body’s preference for one candidate over another, ought not merely to challenge his position on the list or his non-selection, as the case may be, but instead should challenge the position of other people by indicating which candidates in his opinion lacked in qualifications or were unjustifiably favoured in comparison to him. All the other candidates whose positions are affected should be given the opportunity as interested parties to set out their case and objections before the court. Since the administrative authority’s decision affects a number of candidates, it means that the entirety of the decision should be challenged as that is what constitutes the executory administrative act. The part of the decision affecting solely the applicant cannot be considered an autonomous executory act, as that is only one link in the entire chain of considerations which the administrative body makes in order to form the final decision (see, among other authorities, Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391; Georgios Koukkoulis v. Minister of Defence, no. 1224/2008, judgment of 11 October 2010, unreported; Costas Neophytou and Ioannis Ioannou v. Ministry of Defence [2007] 4 A.A.D. 602; Nayias Petousi v. Committee of State Scholarships and others, no. 1309/99, judgment of 27 November 2000, unreported).