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FIRST
SECTION
CASE OF
TALIADOROU and STYLIANOU v. CYPRUS
(Applications
nos. 39627/05 and 39631/05)
JUDGMENT
STRASBOURG
16 October
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Taliadorou and Stylianou v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
Effie
Papadopoulou, ad
hoc judge,
and
André Wampach, Deputy Section Registrar,
Having
deliberated in private on 25 September 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in two applications (nos. 39627/05 and 39631/05)
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 `two Cypriot nationals, Mr
Charalambos Taliadorou and Mr Theodoros Stylianou (“the
applicants”), on 18 October 2005.
- The
applicants were represented by Mr C. Melas, a lawyer practising in
Limassol, Cyprus. The Cypriot Government (“the Government”)
were represented by their Agent, Mr P. Clerides, Attorney-General of
the Republic of Cyprus.
- The
applicants alleged, inter alia, that the denial of
compensation for moral damage they had sustained, was incompatible
with Articles 6, 8 and 13 of the Convention. They further argued that
the reversal of a moral damages award was in breach of their right
under Article 6 § 2 to be treated as innocent following their
acquittal by a court of law.
- By
a decision of 6 July 2006 the Court gave notice of the complaints
concerning Articles 6, 8 and 13 of the Convention to the Government.
It also decided, under Article 29 § 3 of the Convention, to
examine the merits of the application at the same time as its
admissibility. The Chamber decided to join the two applications (Rule
42 § 1).
- Mr Loukis Loucaides, the judge elected in respect of
Cyprus, withdrew from sitting in the case (Rule 28) and the
Government accordingly appointed Ms Effie Papadopoulou to sit as an
ad hoc judge (Rule 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1940 and
1946 respectively and live in Limassol, Cyprus.
- The
applicants were, at the material time, senior officers in the Cypriot
Police Force in which they served until retirement. They both served
continuously with an interruption of one year and nine months under
the conditions set out below.
- On
an unspecified date in 1992, criminal proceedings were initiated
against them in relation to their alleged involvement in the
ill-treatment and torture of suspects.
The prosecuting authorities failed to prove a prima
facie case against them and they
were acquitted on 23 July 1993. The court considered that the
testimony of the principal prosecution witnesses - the victim and one
of his relatives who had been arrested with him- “had been so
obviously unreliable that no reasonable court could rely on it and
convict the accused”. It also considered that the prosecution
had committed a series of improprieties which had tainted the
evidence to such an extent that the case against the applicants
should be discontinued in the interests of the proper administration
of justice.
- Subsequently,
on 3 September 1993, the Ministerial Council appointed an Independent
Investigating Commission (IIC) to examine this matter further. The
Commission’s findings were delivered on 3 November 1995.
It found that the applicants, together with nine other police
officers, had engaged in torture practices against certain suspects
in order to obtain confessions. On the basis of the Commission’s
findings, on 7 March 1996, the Ministerial Council terminated
the applicants’ employment with the Police Force for the
protection of public interest. One other police officer was also
dismissed by virtue of the same decision, while five junior officers
who were also found to have been involved in acts of torture and
ill-treatment of prisoners were not dismissed. The applicants’
dismissal was widely reported in the national press.
- The
applicants challenged the legality of the said decision before the
Supreme Court, exercising its administrative judicial review
jurisdiction.
- The
Supreme Court delivered its judgment in a plenary session on
26 November 1997. It unanimously annulled the decision of the
Ministerial Council which was found to have violated the
constitutional rights of the applicants. In particular, it found that
their right not to be tried twice for the same offence had been
breached and that their right to be presumed innocent, especially in
the light of their acquittal, had been prejudiced. It further found
that the applicants had effectively been dismissed without trial or
disciplinary proceedings and, as such, they had been deprived of any
opportunity to defend themselves. Moreover, the decision of the
Ministerial Council was found to be ultra vires.
- On
28 November 1997, the applicants requested reinstatement to their
former posts. On 5 December 1997 they returned to duty.
- Subsequently,
the applicants brought an action under Article 146.6 of the
Constitution before the District Court of Nicosia requesting fair and
equitable compensation.
- Judgment
was delivered on 30 April 2000 by the District Court, which refused
the applicants’ request for exemplary damages. Concerning their
request for payment of the difference in their monthly salaries,
corresponding to the period in which their service had been
interrupted, the court observed that the applicants had received a
higher amount upon their dismissal than the requested difference in
salaries. This amount had been held by the first applicant throughout
the period following his return to duty and until his retirement and
it was still held by the second applicant. As regards the first
applicant, the amount he had received upon his dismissal had been
deducted from the amount to which he was entitled by virtue of his
retirement and the difference had been paid to him. The request was
accordingly refused.
- However,
7,500 Cypriot pounds (CYP), plus 8 per cent interest as from the
date that the action was lodged, was awarded in compensation for
moral damage. The court pointed out that, as observed by the Supreme
Court in the case of Frangoulides v. The Republic (1982) 1 C.L.R.
462, an award of damages under Article 146.6 of the
Constitution was not subject to the common-law rule for quantifying
damages aimed at restitutio in integrum, but was
governed by the principles of equity. It considered that the
applicants had suffered injury to their psychological and moral
integrity which was directly caused by the annulled decision. In
particular, the following was noted:
“Within this framework of criteria (established in
the domestic case-law), I do not see any good reason why the court in
a case similar to the present one, where, by the exclusive behaviour
of the administration (Ministerial Council) the plaintiffs who, had
been expelled from their positions with characterisations that had
definitely affected them psychologically as they themselves had
maintained, should not be entitled to certain compensation for that
injury to their psychological integrity. I consider such injury as
damage emanating directly from the annulled administrative decision”.
- Moreover,
it was acknowledged that the decision had serious defamatory effects
for them. As such, the relevant award was seen as required by equity
to redress the unlawful act of the administration.
- The
applicants lodged an appeal with the Supreme Court and contended
that the award of damages was manifestly insufficient. The
Attorney-General lodged a cross-appeal requesting the annulment of
the first-instance District Court judgment.
18. The
Supreme Court delivered its judgment on 25 April 2005 by which
it upheld the first-instance court’s decision not to award
exemplary damages and reversed the award of moral damages. The court
noted that Article 146 (6) of the Constitution entitles a person
who sustained injury, as a result of a decision, act or omission by
the administration that had been declared null and void ,
pursuant to Article 146 (4), the right to claim damages or any other
remedy from a civil court which may grant fair and equitable
compensation. An award of compensation could only be made where the
sustained injury had been caused by the annulled act. The
administration’s duty to comply with the annulment of such an
act would require the suppression of all consequences of the annulled
act and reinstatement of the status
quo ante. Such reinstatement should
be complete and address all damaging consequences of the annulled
act. The court further noted that “damage” would
constitute the loss or injury sustained by a plaintiff as a result of
the act on which the cause of action was based. The cause of action
provided for in Article 146 (6) of the Constitution was a cause sui
generis and was governed by rules of
determination of compensation that were different from those provided
for in the common law (Frangoulides
v. The Republic (1982) 1 C.L.R.
462). The court referred to the case of Egglezakis
and others v. The Attorney General of the Republic
((1992) 1 S.C.J. 697), in which the issue as to whether the term
“damage” set out in Article 146 (6) was restricted to
pecuniary damage or extended to psychological and emotional injury
had been left open. The court then stated the following:
“Such moral damage did not constitute a direct
consequence of the annulled administrative act and that, therefore,
such an award was not covered by the provisions of Article 146 (6) of
the Constitution”.
II. RELEVANT DOMESTIC LAW
- Article
146 of the Constitution of the Republic of Cyprus provides as
follows:
“1. The Supreme Constitutional Court shall have
exclusive jurisdiction to adjudicate finally on a recourse made to it
on a complaint that a decision, an act or omission of any organ,
authority or person, exercising any executive or administrative
authority is contrary to any of the provisions of this Constitution
or of any law or is made in excess or in abuse of powers vested in
such organ or authority or person.
2. Such a recourse may be made by a person whose any
existing legitimate interest, which he has either as a person or by
virtue of being a member of a Community, is adversely and directly
affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five
days of the date when the decision or act was published or, if not
published and in the case of an omission, when it came to the
knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision-
(a) confirm, either in whole or in part, such decision
or act or omission; or
(b) declare, either in whole or in part, such decision
or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in
part, ought not to have been made and that whatever has been omitted
should have been performed.
5. Any decision given under paragraph 4 of this Article
shall be binding on all courts and all organs or authorities in the
Republic and shall be given effect to and acted upon by the organ or
authority or person concerned.
6. Any person aggrieved by any decision or act declared
to be void under paragraph 4 of this Article or by any omission
declared there under 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.”
- In
Frangoulides v. The Republic (1982) 1 C.L.R. 462 at p. 470,
Mr Justice Pikis, as he then was, observed the following:
“The cause of action conferred by Article 146.6 of
the Constitution, is a cause sui generis, in the sense that it
bears no relationship to a common law action for damages, or, in
fact, to any other cause of action known to the law (Costas
Tsakkistos v. The Attorney-General (1969) 1 C.L.R. 355). It is a
right to be evaluated in the context of Article 146 and the system of
review of administrative action created thereby. It is ancillary to
judicial review, as a measure necessary for its effectiveness.
Primarily it entitles the injured party to recover damage not
remediable by proper administrative action. If the proper
administrative action is not taken, the remedy is to go to the
administrative court again. If notwithstanding this step the injured
party is left to shoulder damages, then he has a right to recover
them from the Republic. The right to damages under Article 146 is
distinctly independent from any other cause of action, as the Supreme
Court held in Attorney-General v. Andreas Marcoulides and another
(1966) 1 C.L.R. 242. Not only its juridical basis but also the
manner of quantifying damages is different from a common law action.
The Supreme Court emphasised the equitable character of the relief as
well as the damages recoverable, stressing that they are not strictly
compensatory. Consequently, it is legitimate for the Court to have
regard, not only to the extent of the material damage suffered, but
also to the conduct of the parties and the degree to which the
successful party contributed to the production of the wrongful
administrative act. In the case of Marcoulides, supra,
the Supreme Court derived guidance, inter alia, from French
case law, establishing that the conduct of the parties and their
blameworthiness, if any, is of crucial importance to the
determination of the quantum of the damages.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Alleged violation of Article 6 § 2 of the
Convention
- The
applicants complained that their right to be presumed innocent after
the declaration of their acquittal by the Assize Court had been
breached. They alleged a violation of Article 6 § 2 of the
Convention, which reads as follows:
“2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law”.
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible. Pursuant to Article 29 § 3 of
the Convention, the Court will now consider the merits of this
complaint.
2. Merits
- The
Government accepted that Article 6 § 2 was applicable in the
present case. However, they maintained that the presumption had been
fully respected as the judgment of the Supreme Court that reversed
the District Court’s award of moral damages had made no
suggestion, explicit or otherwise, that the applicants had been
guilty of the offences in respect of which they had previously been
acquitted or, indeed, of any other offence.
- The Court reiterates in the first place that the
presumption of innocence enshrined in paragraph 2 of Article 6 is one
of the elements of a fair trial that is required by paragraph 1. The
presumption of innocence will be violated if a judicial decision or a
statement by a public official concerning a person charged with a
criminal offence reflects an opinion that he is guilty before he has
been proved guilty according to law (see, among other authorities,
Deweer v. Belgium, judgment of 27 February 1980, § 56,
Series A no. 35; Minelli v. Switzerland,
25 March 1983, §§ 27 and 37, Series A no. 62; and
Allenet de Ribemont v. France, 10 February 1995,
§§ 35 36, Series A no. 308).
- However,
the scope of Article 6 § 2 is not limited to criminal
proceedings that are pending (see Allenet de Ribemont v. France,
cited above, § 35). It may also be applicable where
the criminal proceedings proper have terminated in an acquittal and
other courts issue decisions voicing the continued existence of
suspicion regarding the accused’s innocence or otherwise
casting doubt on the correctness of the acquittal (see Zollmann v.
the United Kingdom (dec.), no. 62902/00, ECHR 2003 XII).
- The
Court notes that the second set of proceedings before the domestic
courts was brought by the applicants, who claimed compensation in
respect of an annulled administrative decision which had imputed to
them responsibility for acts of torture and ordered their dismissal.
The administrative decision had been annulled by the Supreme Court
because, inter alia, it violated the presumption of innocence
as guaranteed in the Constitution and Article 6 § 2 of the
Convention. Given that the second set of proceedings concerned the
claim for compensation as a remedy for an act that ran counter to the
guarantee of Article 6 § 2, the Court agrees with the parties
that this provision is applicable (see also Panteleyenko v.
Ukraine, no. 11901/02, § 68, 29 June 2006) . It
reiterates in this connection that one of the functions of Article 6
§ 2 is to protect an acquitted person’s reputation from
statements or acts that follow an acquittal which would seem to
undermine it.
- However,
the Court notes that the Supreme Court did not make any express or
implied indication which undermined the applicants’ innocence
and acquittal. Although it did reverse the moral damages award made
by the District Court, the Supreme Court did not link that reversal
to any suspicion that the applicants had in fact been guilty of the
offences of which they had been acquitted, but instead based itself
conclusively on the issue of causation. Moreover, the Court notes
that the issue concerning the extent to which the Supreme Court’s
decision failed to protect the applicants’ reputation will be
examined under Article 8 of the Convention.
- Accordingly,
the Court finds that there has been no violation of Article 6 § 2
of the Convention.
B. Other complaints under Article 6 of the Convention
- The
applicants complained about the fairness of the domestic proceedings
under Article 6 of the Convention on the various counts set out
below.
- Article
6 of the Convention provides, in so far as relevant, that:
“1. In the
determination of his civil rights and obligations ..., everyone is
entitled to a fair ... hearing ... by [a] tribunal.”
1. The Supreme Court’s reasoning
- The
applicants contended that the Supreme Court’s judgment of
25 April 2005 had been inadequately reasoned.
- The
Court reiterates that according to its established case-law,
reflecting a principle related to the proper administration of
justice, judgments of courts and tribunals should adequately state
the reasons on which they are based. The extent to which this duty to
give reasons applies may vary according to the nature of the decision
and must be determined in the light of the circumstances of the case
(see the Ruiz Torija v. Spain and Hiro Balani v. Spain, 9
December 1994, §§ 27, 29, Series A nos. 303-A and 303-B;
Higgins and Others v. France, 19 February 1998, § 42,
Reports of Judgments and Decisions
1998-I). Although Article 6 § 1 obliges courts to give reasons
for their decisions, it cannot be understood as requiring a detailed
answer to every argument of the parties involved (see Van de Hurk
v. the Netherlands, 19 April 1994, § 61, Series A no.
288).
- The
Court observes that the Supreme Court did address the essential
issues submitted to its jurisdiction. It therefore determined that
the claim for pecuniary damage should fail since the applicants had
already received the amounts to which they were entitled by virtue of
their dismissal and gave a proposition of law as to why the claim for
non-pecuniary damage could not be sustained. Thus, the Court
concludes that this requirement was satisfied in the particular
circumstances of the instant case and that the proceedings in issue
were not rendered unfair on the ground invoked by the applicants. As
to the sufficiency of the examination of the applicants’ claim
concerning the injury they sustained to their moral and psychological
integrity and reputation, the Court considers that this is an issue
falling within the scope of Article 8 of the Convention and will
examine it separately under that provision.
- Accordingly,
this part of the complaint must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention.
2. Alleged ultra vires nature of the decision by the
Ministerial Council
- The
applicants argued that the Ministerial Council’s decision had
exceeded the powers delegated to it by law and had been arbitrary.
The Court observes in this connection that this complaint formed part
of the proceedings leading to the Supreme Court’s judgment of
26 November 1997. It was held therein that the decision
requiring their dismissal had been reached by exceeding and abusing
the powers of the Ministerial Council and it was subsequently
annulled. Thus, the applicants may not be regarded as “victims”
of a breach of their rights in this respect.
- It
follows that this complaint must be dismissed in accordance with
Article 35 §§ 3 and 4 of the Convention.
3. Alleged violation of the applicants’ right to
defend themselves prior to their dismissal
- The
applicants complained that their right to defend themselves in the
proceedings leading to the decision of the Ministerial Council
ordering their dismissal had been violated. They relied on Article 6
§ 3 of the Convention which provides, in so far as relevant, as
follows:
“Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and
facilities for the preparation of his defence;
(c) to defend himself in person or
through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require.”
- The
Court observes that the relevant proceedings were not criminal in
nature and thus Article 6 § 3 is not applicable. The substance
of the applicants’ complaint falls to be examined under Article
6 § 1 of the Convention.
- In
this connection the Court notes that a violation of this right of the
applicants had been acknowledged by the Supreme Court in its judgment
of 26 November 1997 and the applicants had been reinstated to their
posts. Thus, the applicants may not be regarded as “victims”
of a breach of their rights in this respect.
- Accordingly,
this complaint must be rejected pursuant to Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained about the judgment of the Supreme Court that
had reversed the award of moral damages by the lower court. It was
the view of the applicants that the relevant award had been made in
relation to the distress and other pain and suffering they had
sustained owing to their dismissal from the police force by a
decision that had accused them of having committed acts of torture.
They considered that the decision to reverse the award had failed to
acknowledge such harm, in disregard of their right to protection of
their moral and psychological integrity and of their reputation.
- The
Court observes that the applicants did not specify on which provision
of the Convention their complaint was based. The Court reiterates
that once a case has been duly referred to it, it is entitled to
examine every question of law arising in the course of the
proceedings and concerning facts submitted to its examination in the
light of the Convention and the Protocols as a whole (see, inter
alia, Guerra and Others v. Italy, judgment of 19 February
1998, Reports 1998 I, p. 223, § 44, and
Handyside v. the United Kingdom, 7 December 1976, § 41,
Series A no. 24).
- Having
regard to the circumstances of the case, the Court communicated the
complaint to the respondent Government and will proceed to examine it
under Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court notes that the parties did not dispute the applicability of
Article 8, nor the admissibility of the complaint.
- The
Court considers that Article 8 is applicable to the applicants’
complaint in that it concerned the protection of their moral and
psychological integrity and of their reputation, all of which fall
within the scope of Article 8 of the Convention (see, inter
alia, X
and Y v. the Netherlands, 26 March
1985, § 22, Series A no. 91; Raninen
v. Finland, 16 December 1997,
§ 63, Reports
1997 VIII; Niemietz
v. Germany,
16 December 1992, § 29, Series A no. 251-B). Specifically
in respect of the protection of an individual’s reputation, the
Court notes that it has been acknowledged as an interest guaranteed
by Article 8 of the Convention (see, inter alia,
Pfeifer v. Austria, no. 12556/03, § 35, 15
November 2007; White v. Sweden, no. 42435/02, § 19,
19 September 2006; Chauvy and Others
v. France, no. 64915/01,
§ 70, ECHR 2004 VI; and Abeberry
v. France (dec.) no. 58729/00,
21 September 2004).
- It
considers that the complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible. Pursuant to Article 29 § 3 of the Convention,
the Court will now consider the merits of this complaint.
B. Merits
1. The parties’ submissions
(a) The Government’s submissions
- The
Government contested the applicants’ position and maintained
that the reversal of the award of moral damages was not incompatible
with the respondent State’s obligations under Article 8. They
maintained that the Supreme Court had determined that in this
particular case the moral injury sustained by the applicants did not
constitute a direct consequence of the annulled unlawful act and, as
such, was not covered by the provisions of Article 146.6 of the
Cypriot Constitution. Lastly, they noted that the interpretation of
domestic law as well as findings of fact fell within the relevant
margin of appreciation accorded to States and that this Court could
not substitute its own assessment and interpretation for such
findings, as if it were a fourth-instance court.
(b) The applicants’ submissions
- The
applicants maintained that the reversal of the award of damages in
respect of their dismissal from the Police Force because they had
allegedly committed acts of torture, and despite their acquittal of
the same charges by a court of law, was plainly incompatible with the
respondent State’s obligations under Article 8 of the
Convention. The reversal of the award had undermined the protection
of their moral and psychological integrity and reputation, being
encompassed in the protection guaranteed by Article 8.
2. The Court’s assessment
- The
Court reiterates that, although the object of Article 8 is
essentially to protect the individual against arbitrary interference
by the public authorities, it does not merely compel the State to
abstain from such interference. In addition to this primarily
negative undertaking, there may be positive obligations inherent in
an effective respect for private life. These obligations may involve
the adoption of measures designed to secure respect for private and
family life and may include the requirement that the State set up a
system for the effective protection of an individual’s right to
privacy with implementation in cases of unlawful interferences
falling within its scope. The boundaries between the State’s
positive and negative obligations under Article 8 do not lend
themselves to precise definition. The applicable principles are
nonetheless similar (see Dickson v. the United Kingdom [GC],
no. 44362/04, § 70, ECHR 2007 ...).
50. The
Court considers that it is more appropriate to
analyse the case as one concerning the State’s positive
obligations to guarantee effective respect for private life by its
legislative, executive and judicial authorities. It notes in this
connection that the applicants complained that the domestic
authorities had denied them reparation for the injury they had
sustained to their moral and psychological integrity and reputation
by holding that such injury was not causally linked to an unlawful
administrative act. The applicants further claimed that in effect the
domestic authorities had created a lacuna in the national
jurisdiction by holding that moral damages could not be awarded as
compensation for an unlawful administrative act.
- The
Court recalls that the applicants, senior police officers, were
accused, in the report of an IIC, of involvement in torturing
suspects. The findings of the IIC received considerable publicity and
led to the applicants’ dismissal from the police force. The
applicants contested their dismissal before the Supreme Court which
found that the dismissal had violated their rights guaranteed by the
Cypriot Constitution. They then lodged an action requesting
compensation and were awarded by the District Court damages for the
injury they had sustained to their psychological and moral integrity
and reputation. The Supreme Court reversed this award and found that
the moral injury that the applicants sustained was not causally
linked to the decision ordering their dismissal.
- The Court reiterates that Article 8 of the Convention
requires the State to guarantee to its citizens an effective right to
privacy. The Court has, on a number of occasions, ruled that “private
life” is a broad term not susceptible to exhaustive definition
(see Peck v. the United Kingdom, no. 44647/98, § 57,
ECHR 2003-I). Article 8 protects the moral integrity of an
individual (see X and Y v. the Netherlands, 26 March 1985, §§
22-27, Series A no. 91), including the right to live privately,
away from unwanted attention. It secures to an individual a sphere
within which he or she can freely pursue the development and
fulfilment of his or her personality.
- However,
the notion of “private life” is not restricted to an
“inner circle” in which an individual may live his own
personal life as he chooses. Respect for private life also comprises,
to a certain degree, the right to establish and develop relationships
with other human beings (see Niemietz v. Germany, 16
December 1992, § 29, Series A no. 251-B). Furthermore, it
includes activities of a professional or business nature since it is,
after all, in the course of their working lives that the majority of
people have a significant opportunity of developing themselves as
well as their relationships with the outside world (see Niemietz,
cited above).
- The
Court has previously held that an interference affecting an
individual’s ability to engage in professional activities and
creating serious difficulties for him in terms of earning his living
might have, in certain circumstances, repercussions on the enjoyment
of his private life (see, mutatis mutandis, Sidabras and
DZiautas v. Lithuania, nos. 55480/00 and 59330/00, § 48,
ECHR 2004 VIII). Moreover, the Court reiterates that an
administrative dismissal may, in certain circumstances, constitute an
interference with the rights guaranteed by Article 8 of the
Convention. This would be the case where, for instance, it is imposed
for reasons and by means that contravene the essence of the right to
privacy (see Smith and Grady v. the United Kingdom,
nos. 33985/96 and 33986/96, § 71, ECHR 1999 VI).
55. The
Court further reiterates that Article 8 of the Convention
requires not only that the State should refrain from action that
would unjustifiably interfere with an individual’s right to
privacy but also that it should set up a system for its effective
protection and implementation in cases of unlawful interference
falling within its scope. This could require the adoption of measures
designed to secure respect for private life, including both the
provision of a regulatory framework of adjudicatory and enforcement
machinery protecting individuals’ rights and the
implementation, where appropriate, of specific measures (see Tysiąc
v. Poland, no. 5410/03, § 110, ECHR 2007 ...; X
and Y v. the Netherlands, cited above, § 23). Such
a system should afford the possibility of an effective
proportionality assessment of instances of restriction of an
individual’s rights (see Dickson v. the United Kingdom [GC],
cited above, § 84).
- The
Court notes the applicants’ position that, as a result of the
circumstances surrounding their dismissal, they had suffered severe
embarrassment. It accepts that they had been burdened with the status
of “torturers” which affected the enjoyment of their
“private life” by effectively prejudicing their moral
integrity and reputation. The Court also accepts that Article 8
cannot be relied on in order to complain of the damage to an
individual’s reputation which is the foreseeable consequence of
one’s own actions such as, for example, the commission of a
criminal offence. It notes however that the applicants had been
acquitted of the offences with which they had been charged and that
the domestic court found that there had been no case for the defence
to answer.
- The
Court observes that the District Court had found that significant
injury had been caused to the applicants’ moral and
psychological integrity by the impugned administrative act, which
also had severe defamatory consequences for the applicants. The
Supreme Court did not explicitly depart from or overrule the finding
made by the District Court as to the damage that had been sustained
by the applicant. Having examined its previous case-law on the
question which, in its view, had left this issue open, it observed
that the moral damage sustained by the applicants did not emanate
from the annulled decision and that, as such, the claimed award was
not covered by the domestic law provision under which the applicants’
claim had been introduced. No reason was provided for this
conclusion.
- In
view of the above, the Court finds that the Supreme Court denied the
applicants equitable relief in respect of damage caused by an
unlawful administrative act, without sufficient explanation. The
Court reiterates the importance of protecting an individual’s
moral and psychological integrity and reputation, as guaranteed by
Article 8 of the Convention. The effective protection of such
interests requires an established framework in the domestic legal
system that enables a proportionality assessment of instances in
which an individual’s corresponding rights are restricted.
While the Court’s role is not to interpret the Constitutional
provision under which the applicants sought compensation for the
injury to their integrity and reputation, the Court finds that the
Supreme Court failed to provide an adequate explanation for the
reversal of the award of moral damages. The Court considers that the
absence of a comprehensive assessment as regards a matter affecting
the applicants’ rights guaranteed by Article 8 of the
Convention was not consonant with an acceptable margin of
appreciation.
- In
view of the above, the Court concludes that there has been a
violation of the respondent State’s procedural obligations
under Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that there had been a violation of the right to
an effective remedy under Article 13 of the Convention, which
provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed this argument.
- The Court considers that this complaint is closely
linked to the complaint examined above under Article 8 of the
Convention and must therefore likewise be declared admissible.
However, having regard to its decision under Article 8 of the
Convention, the Court considers that it is not necessary to examine
separately whether the complaint also entails a violation of Article
13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants complained that they had suffered discrimination in the
light of the difference in treatment afforded by the authorities to
five police officers who were accused of the same offences by the
relevant Independent Investigating Commission but who were not
ultimately dismissed. They relied in this connection on Article 14 of
the Convention which provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court reiterates that it is an important feature of the rule of
exhaustion of domestic remedies, set out in Article 35 § 1 of
the Convention, that any allegations that are submitted before it
must have previously been raised before the national authorities. It
finds that the applicants did not show in their application that they
had complied with this requirement of the Convention, as they had not
made any such allegations in the domestic proceedings.
- Accordingly,
this part of the application must be rejected for non-compliance with
the rule of exhaustion of domestic remedies pursuant to Article
35 § 1 and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 4 OF
PROTOCOL NO. 7
- The
applicants complained that the work of the Investigating Commission
appointed by the Ministerial Council had amounted in substance to a
second trial examining the offences of which they had been acquitted
by a court of law. In this respect they relied on Article 4 of
Protocol No. 7 which provides, in so far as relevant, as follows:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.
2. The provisions of the preceding paragraph
shall not prevent the reopening of the case in accordance with the
law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case.”
- The
Court reiterates that Article 4 of Protocol No. 7 enshrines the non
bis in idem rule and prohibits a defendant from being
tried or punished in criminal proceedings, under the jurisdiction of
the same State, for an offence of which he has already been finally
convicted. The Court considers that this provision is not applicable
to the facts of the present case, since the relevant procedure
followed was not criminal in nature (see Storbråten
v. Norway (dec.), no. 12277/04, ECHR 2007-...
(extracts), and Mjelde v. Norway (dec.) 11143/04,
1 February 2007). But even assuming that there is merit in the
applicants’ argument, the Court reiterates that a violation of
their rights in this respect was expressly acknowledged by the
Supreme Court. Moreover, the contested decision of the Ministerial
Council was annulled and the applicants were reinstated to their
posts. As such the applicants cannot be regarded as “victims”
of a violation of their rights in this respect.
- In
the light of the above considerations, the Court finds that the
applicants’ complaint must be rejected pursuant to Article 35
§§ 3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
- The applicants made no claim for compensation in
respect of pecuniary and non-pecuniary damage.
- Accordingly,
the Court makes no award in this respect.
B. Costs and expenses
- The
applicants sought CYP 3,000 for costs and expenses incurred within
the domestic legal system in respect of the second set of
proceedings. They provided the Court with an invoice concerning the
first set of proceedings.
- The
Government contested the applicants’ claim for costs and
expenses.
- The Court reiterates that only legal costs and
expenses found to have been actually and necessarily incurred and
which are reasonable as to quantum are recoverable under Article 41
of the Convention (see, among other authorities, Nikolova v.
Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith
and Grady v. the United Kingdom (just satisfaction),
nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). This may
include domestic legal costs actually and necessarily incurred to
prevent or redress the breach of the Convention (see, for example,
I.J.L., G.M.R. and A.K.P. v. the United Kingdom (Article
41), nos. 29522/95, 30056/96 and 30574/96, § 18,
25 September 2001).
- In the present case, the Court notes that the
applicants merely submitted an invoice referring to a lump sum with
no indication of the rate charged or the time spent by the lawyers,
or any details concerning court and out-of-court expenses. As such,
the claim in respect of the domestic proceedings has not been fully
substantiated. With regard to the Strasbourg proceedings the
applicants made no claim. Having regard to the above-mentioned
criteria, the Court considers it reasonable to award the sum of EUR
2,000, inclusive of VAT, for the domestic costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which three percentage points should be added.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 §
2, Article 8 and Article 13 admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 2 of the Convention;
- Holds that there has been a violation of
Article 8 of the Convention;
- Holds that it is not necessary to examine
separately the applicants’ complaint under Article 13 of the
Convention;
- Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 2,000
(two thousand euros) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points.
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 16 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
