|
|
Supreme Court of Cyprus Revisional Jurisdiction
|
|
|
Key facts of the case:This is an appeal against the previous decision of the Supreme Court which had dismissed the appellant's recourse to set aside the Public Service Commission’s decision not to offer the applicant a post at at the Department of Road Transport. The decision was based on article 31(b) of the Public Service Law 1990 N. 1/90, which requires applicants for public posts to have lawfully discharged all military obligtations. The applicant also challenged the validity of the interim judgement of the trial judge by which an application by the applicant to amend the legal grounds of his recourse was rejected. The application for amendment aimed at introducing to the recourse the legal grounds that sections 4, 7 and 8 of the National Guards Laws (which set out the procedure for discharge from the army) are unconstitutional because they infringe articles 6, 8, 15, 18 and 25 of the Constitution on the grounds that they establish unequal treatment between citizens belonging to different social groups, because the procedure prescribed in the National Guard Laws for establishing his identity as a homosexual was degrading and humiliating. Main reasoning/argumentation:The court reiterated that questions of unconstitutionality must be raised with sufficient clarity and in quite unequivocal terms. The motion of relief of the recourse did not contain the required specialisation that would enable the judicial review of the laws under question; the general invocation of a legal provision as unconstitutional is not sufficient. In any case the court stated that the vague allegations contended by the applicant were actually related to the military service in the National Guard and not to the object of the recourse at hand, which was the appointment to a public post. The court agreed with the findings of the trial judge. Key issues:The Appeal Court invoked procedural reasons and did not address the issue of constitutionality of either the Public Service Laws or the National Guard Laws. As a result, the argument of the Applicant that the obligation imposed by the Public Service Law amounted to unequal treatment as regards his beliefs and particularities as a homosexual was not examined. The appeal failed and was dismissed by the court. The question of the constitutionality of the obligation to perform the military service in cases of homosexuals was left undetermined.Results: The court’s decision to disallow the application to change the legal basis of the appeal inevitably results in the applicant altogether losing his right to challenge the decision by which his employment application was turned down, because the Constitution (article 146) sets a 75 days’ limitation for challenging administrative decisions. Moreover, since the application to change the legal basis was sought in order to introduce constitutional articles which had been in force since 1960, the court’s decision to disallow this application deprives the appellant of a line of argumentation which he could have brought forward in the first instance. Remarkably, the appellant did not invoke Law 58(I)/2004 which had meanwhile been encated and which transposes Directive 2000/78/EC.Had the appellant tried to introduce in his legal arguments a new law which had meanwhile come into force, then the court’s decision to disallow the change of legal argumentation would have been illegal.
|