ARTICLE 146
THE CONSTITUTION CHARALAMBOS MENELAOU, Applicant, THE REPUBLIC
CYPRUS, THROUGH THE COMMISSIONER
INCOME TAX, Respondent. (Case No. 419/78). 5 10 15 Public
ficers—Vested rights—Terms and conditions
service— Retirement benefits—Whether they can be altered to
ficer's disadvantage after his retirement—Public
ficer holding
fice, immediately before the coming into operation
the Constitution, which came within the competence
a Communal Chamber— Retiring from his
fice and electing, by virtue
.3
the Constitution, to be paid pension as provided by section 4of the Compensation (Entitled
ficers)Law. 1962(Law 52/62)— No income tax paid on such pension by virtue
section 8
the said Law—Imposition
income tax by means
section 2
thesubsequently enacted Law 19/76unconstitutional asoffending against Article 192.3
the Constitution which safeguards the
ficer's vested rights. Constitutional Law—Constitutionality
legislation—Section 2
the Compensation (Entitled
ficers) (Amendment) Law, 1976 (Law 19/76)—Unconstitutional as
fending against Article 192.3
the Constitution. Compensation (Entitled
ficers) (Amendment) Law, 1976 (Law 19/76)—Section 2
the Law unconstitutional as
fendingagair.st Article 192.3
the Constitution. 20 The applicant held up to the 16th August, 1960, the day
the coming into operation
the Constitution, the permanent and pensionable post
teacher in the Paedagogic Academy 599 Menelaou v. Republic
the then Education Department. After the Independence
Cyprus, as from the 16th August, I960, his post came under the Greek Communal Chamber and he ceased to be a civil servant by operation
(l)(b)
the Constitution. Under Article 192.3(*) he was entitled to just compensation or 5 pensiononabolition
office terms. For thepurpose
promoting the application
.3
the Constitution there was enacted the Compensation (Entitled
ficers) Law, 1962 (Law 52/62); and the applicant being a civil servant to whom the provisions
.3 became applicable elected 10 compensation by way
pension under section 4(l)(a)**
the said Law 52/62 instead
a cash payment
a lump sum under section 4(l)(b)***
the same Law. In exercising his option applicant relied onsection 8of Law52/62which provided as follows: 15 "All payments made under the pro\isions
this Law shall be exempt from income tax imposed by the Income Tax Law or any other Law inforce at anytime and relating to the imposition
income tax". For the period as from his retirement till the end
1975, 20 the applicant was never assessed to pay any income tax on the pension he was receiving following the exercise by him
the above option. In July 1978 the respondent Commissioner relying on section 2
Law 19/76, which repealed and replaced the above quoted section 8, decided to tax applicant's 25 said pension; and hence this recourse. Held, that the applicant was a civil servant who was covered under the provisions
.3 and who exercised his option to get compensation by way
a lump sum relying on the provisions
section 8
Law 52/62 and considering that 30 as "the more advantageous on abolition
fice terms", as provided by Article 192.3
the Constitution; that ever since heceased tobeacivil servant (seeArticle 122ofthe Constitution Article 192.3 provides as follows: "Where any holder
an
fice mentioned in paragraphs 1 and 2
this Article is not appointed in the public service
the Republic he shall beentitled, subject to the terms and conditions
service applicable to him, to just compensation or pension on abolition
fice terms out
the funds
the Republic whichever is more advantageous to him". Quoted at p. 604 posi. Quoted at p. 604 post. .600 3 C.L.R. and section 2
the Public Service Law, 1967); that due to the change
his status, any regulations or any modifications in the schemes
service or retirement benefits after retirement could not be applicable to him; that Law 19/76, which amended section 8
the previous law, was not given retrospective effect and at the time
the enactment
such law, the applicant was not "δικαιούχος αα;ντό£ιμος υπάλληλος" ("entitled pensionable
ficer") as appearing in sections 2, 3 and 4
Law 52/62 but he was a retired servant "άφυπηρετήσας owraciοϋχσς υπάλληλος"and any relationship between the Govern ment and the applicant in respect
employment had already been ended by the retirement
the applicant prior to the enact ment
Law 19/76; that, therefore, the applicant has a vested right safeguarded by the provisions
.3
the Constitutionand Law 52/62 and which, right, has been exercised by the applicant by electing what was most advantageous to him under the provisions
.3
the Constitution and Law 52/62; accordingly the provisions
section 2
Law 19/76 in so far as the applicant is concerned, are unconstitutional and the acts
the respondent complained
, are declared null and void and
no effect whatsoever (Inter alia Decisions Nos. 236/1932 and 965/35
the Greek Council
State distin guished because they refer to cases where the employment
the civil servant was still existing and the relation between the civil servant and the State was continuing, in which case there was power
the State to regulate such relation by any sub sequent legislation). Sub judice decision annulled. 5 10 15 20 25 Per 30 35 Menelaou v. Republic curiam: The position might have been different, if a person had to exercise his option after the enactment
Law 19/76 and in such case he would have the opportunity, before exercising his option, to consider what would have been more advantageous to him, as provided by Article 192.3
the Constitution. Cases referred t o : Papaneophytou (No. 2) v. The Republic
the Greek Council
State; Loizidesand Othersv. TheRepublic
the Commissioner
Income Tax to assess applicant's income tax for the years 1976-1977 relying on the provisions
Law No. 19/76. L. Papaphilippou, for the applicant. 15 A. Evangelou, Counsel
the Republic, for the respondent. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant by this recourse prays for a declaration that the act and/or decision
the respondent to assess the applicant income tax 20 on hispension for the years 1976-1977, relying on the provisions
Law 19/76, is null and void and
no legal effect. The relevant facts which are not in dispute, are as follows: The applicant held up to the 16thAugust, 1960,the permanent pensionable post
teacher in the Paedagogic Academy
25 the Education Department in the service
the Government
Cyprus, which, till then, was a British Colony. After the Independence
Cyprus and as from the 16th August, 1960, his post came under the Greek Communal Chamber and the applicant ceased to be a civil servant by operation
87(l)(b)
the Constitution and his status from that
a civil servant became that
a servant
the Greek Communal Chamber. Under Article 192
the Constitution, provision was made for remedying any injustice that might have accrued to any 35 such holder
public
fice whose status was to be affected. Under paragraph
Menelaou v. Republic Sawldes J. holders
fice in the public service whose
fices came under the competence
the Communal Chamber to waive their rights under paragraph
and choose to serve under such Communal Chamber and that in such case they 5 would be entitled to receive from the Republic any retirement benefit, pension, gratuity or other like benefit to which they would have been entitled under the law in force immediately before thedateof thecominginto operation
the Constitution in respect
the period
their service before such date if 10 such period by itself or together with any period
service under such law, have entitled them to any such benefit. Paragraph
eals with the position
Judges which is not the concern
the present case. Paragraph
reads as follows: 15 20 "Save where othei provision is made in this Constitution anyperson who,immediately before the date
thecoming into operation
this Constitution, holds an
fice in the public service shall, after that date, be entitled tothesame terms and conditions
service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance inthe public service
the Republic on or after that date". And paragraph
an
fice mentioned in paragraphs 1 and 2ofthisArticleisnot appointed inthepublicservice
the Republic he shall be entitled, subject to the terms and conditions
serviceapplicabletohim,tojust compensation or pension on abolition
fice terms out
the funds
the Republic whichever is more advantageous to him". For the purpose
promoting the application
the said provision in the Constitution, Law 52/62, as subsequently amended by Law 68/62, was enacted. The applicant being a civil servant to whom the provisions 35
.3
the Constitution became applicable, elected compensation by way
pension under section 4{l)(a)
Law 52/62 instead
a cash payment
a lump sum under section 4(l)(b)
the same Law. 603 Sawides J. Menelaou v. Republic
Law 52/62 reads as follows: " 4 . - ( l ) Ό δικαιούχος συντάξιμος Οττάλληλος έπϊ τη άφυπηρετήσει αύτοΰ σύμφωνους ταΐς διατάξεσι τοΟ άρθρου 3, δικαιούται νά λάβη, κατόπιν επιλογής ασκούμενης ύπ* αϋτοϋ έν τ ω τ ύ π ω τ ω έκτεθειμένω έν τ ω Πρώτω Παραρτή5 μάτι, καΐ αποστελλόμενης προς τόν Ύττουργόν εντός περιόδου τριών μηνών ά π ό της ενάρξεως της Ισχύος τοΟ παρόντος Νόμου, είτε (α) σύνταξιν βάσει τών περί συντάξεως έν περιπτώσει καταργήσεως θέσεως ή αξιώματος διατάξεων είτε (β) άποζημίωσιν Οπό μορφήν προσθέτου χορηγήματος, ίσου προς το ποσόν της ετησίας συντάξεως είς ην θα έδικαιοϋτο την 15ην Αυγούστου, 1960, δυνάμει τοΰ περί Συντάξεων Νόμου ώς οΰτος τροποποιείται ΰπό τοΰ παρόντος Νόμου, πολλαπλασιαζόμενου έπϊ τον συντελεστήν τόν έκτεθειμένον έν τ ω Δευτέρω Γίαραρτήματι τοΰ παρόντος Νόμου, όστις αντιστοιχεί προς τ ά συμπεπληρωμένα ετη της ηλικίας αύτοΰ κατά την 15ην Αυγούστου 1960." ("4-
ficer on his retirement in accordance with the provisions
section 3, may receive, upon an option exercised by him in the form appearing in the First Schedule and sent to the Minister within a period
three months from the coming into operation
this Law, either— 10 15 20 25 (a) a pension under the provisions relating to pension in case
abolition
post or
fice, or (b) compensation in the form
additional grant, equal to the sum
the annual pension to which he would be entitled on the 15th August, 1960, under the Pen- 30 sions Law as amended by this Law, multiplied by the multiplier appearing in the Second Schedule
this Law, which corresponds to the completed years
his age on the 15th August, I960"). The period
three months mentioned in section 4
nine months 604 35 3 C.L.R. Menelaou v. Republic Savtides J. on the appropriate form set out in the First Schedule
the said Law, from the day that Law 52/62 came in force. No provision is made in the said Law as to what might happen if such option wasnot exercised within the said period. Taking, 5 however, into consideration theprovision
section 6
death prior to the exercise
the option to theeffect that in such cases theentitled civil servant would be deemed as having exercised his option by way
compensa tion under paragraph 4(l)(b) onemight say that in the absence 10
anyprovision to thecontrary, thesame would have applied in the case
a civil servant who failed to exercise his option within thetime fixed by law. Theimportance
the time limit rests intheclear intention
the legislature to have thematter finally disposed
within the defined period
nine months. 15 20 25 Inexercising his option applicant relied on section 8
Law 52/62 which provided as follows: "
this Law are exempted from income tax imposed under the Income Tax Lawor any other Lawin force from time to time providing for the imposition
income tax"). For theperiod as from his retirement till the endof 1975, the applicant was never assessed to pay any income tax on his pension. Onorabout the 27th July, 1978 the Commissioner
Income Tax decided to tax applicant's pension relying on 30 theprovisions
section 2
Law 19/76, whereby section 8of Laws 52/62 and68/62 was repealed andreplaced by thefollow ing, as new section 8: 35 "8. 'Εξαιρέσει τών έπϊ ετησίας βάσεως πληρωμώνσυντάξεως τών γενομένων δυνάμει της παραγράφου (α) τοΰ εδαφίου
theyearly paymentsof pensions made under para, (a)
sub-section
section 4 all payments made in accordance with the provisions
this law are exempted from the income tax imposed under the Income Tax Law or any other law in force from time to time providing for the imposition
income tax"). 5 By notice
assessment dated 27.7.1978, the applicant was assessed to pay income tax for the years 1976-1977, both in 10 respect
his pension andinrespect
all his otheremoluments. The applicant on 31.7.1978 protested to the assessment
any tax on his pension by letter sent to the Commissioner
Income Tax copy
which is attached to the application
exh "B". By letter dated 25.8.1978 the Commissioner
Income Tax infoimed the applicant thathe had decided to reject applicant's objection and thatheinsisted for payment
thetax soassessed. There is no dispute as to the amount
tax payable by applicant in respect
income tax from sources other than his 20 pension. The only dispute is in respect
tax assessed on his pension as follows: (
section 2
Law 19/76 is unconstitu- 30 tional, being contrary to Aiticle 192
theConstitu tion.
the recourse), has no application in applicant's case but only in those cases where the right
option under section 35 606 15 3 C.L.R. Menelaou v. Republic Savvides J. 4
Law 52/62 is exercised after the date
the enactment
Law 19/76.
agreed or secured just compensation or pension 5 payable to the applicant under Article 192
the Constitution.
Law 19/76 amounts to violation
an agreement and/or
the principles
proper and decent administration and
fends the established principle
confi10 dence in the public administration.
his option under section 4
Law 52/62 established a contractual relationship with the Republic and created a legal status, placing the applicant on pension which cannot be reduced or charged by the one 15 side only by means
legal process and in particular in view
the Revisional Appeal No. 113. Counsel for applicant in dealing with his first point
law, contended that: (i) Section 4
Law 52/62 which Law was enacted under 20 the provisions
the Constitution, gave an option to the applicant to retire by electing to bepaid compensation in the way
pension than compensation in the way
a lump sum, both
which were free
income tax. By exercising such option, the applicant acquired a vested right 25 which he has been enjoying for years and which cannot be changed or taken away from him, without his consent. (ii) The principle
equality, as provided by Articles 6 and 28
the Constitution is
fended by section 2
Law 19/76in that once the right to regulate the constitutional provi30 sion
income tax as against full compensation paid in cash free
income tax which was adopted by others in similar circumstances as the applicant. 35 The option thus exercised by applicant has created a vested right which is now jeopardised and applicant is placed in a disadvantageous position vis-a-vis those who, under the provi607 Savvides J. Menelaou v. Republic
Law 52/62 elected to be paid their compensation by way
a lump sum free
income tax. (iii) When a law gives an advantage or benefit connected with a Constitutional provision, no other law can attack this right or affect or change or amend or otherwise abolish such 5 right. Once the Government regulated the Constitutional provision affording benefits
compensation topersons qualified under Article 192
the Constitution it was not entitled to reregulate such compensation, especially bydepriving the applicant or other persons from their vested rights. 10 (iv) A Constitutional provision has overriding force over any other enactment. Law 52/62 is a law which was enacted to giveeffect to the Constitutional provision and in consequence, it has the same overriding legal force as that
the enabling Article 192
the Constitution. 15 In dealing with the second ground
law, counsel argued that section 2
Law 19/76 cannot have any application in the present case, as the Government cannot interfere with a legal option granted by legislative provision which, at the time it wasgranted, was considered by the applicant as the most advan- 20 tageous for him and acted upon by him. Such provision can only have application in cases where the option
section 4
Law 52/62 is exercised after the date that Law 19/76 came into operation. The act
the respondent based on the provisions
Law 25 19/76 amounts to a reduction
the agreed compensation or pension payable to the applicant which was safeguarded by Article 192
the Constitution. The applicant till the enactment
Law 19/76 was receiving a certain amount
compensation by way
pension. After such enactment, 30 necessarily this compensation will have to be reduced not by way
a specific extent but by way
his fiscal capacity. On legal ground 4 counsel argued that the exercise by the applicant
the option to be paid compensation by way
pension free
income tax contained in exhibit 1 and the sub- 35 sequent acceptance
such option by the Government
the Republic, created a contract between the Government and the applicant. Such contract had been enforced and acted upon 608 3 C.L.R. Menelaou v. Republic Savvides J. for a number
years. The new law attempts to violate this contract. He went on to argue that in case the Court does not accept this contractual relationship, then it is his submission that the acceptance by the Government
the option contained 5 in exhibit 1 and the subsequent payment
the compensation envisaged therein to the applicant, are facts which create such circumstances which ought to be governed by the principles
proper and decent administration and the Government, therefore, cannot violate such principles because, by doing 10 so, the well established principle
confidence in administrative law will be at stake. As far as legal ground 5 is concerned, counsel adopted the same arguments advanced by him on the other grounds. Counsel for respondent argued that there is nothing which 15 precludes the legislator to enact a law even if such law takes away something which was previously" enjoyed by a citizen unless such law contravenes any constitutional provision. In the present case there is no contravention
tax with retrospective effect. 20 Furthermore, the enactment
Law 19/76 prohibits any inequality between pensioners and all pensioners are placed on the same footing. He further submitted that under Law 19/76 the legislator purports to bring into line with the Income Tax Laws the pensions received under Law 52/62. 25 In dealing with the submission that the enactment
Law 19/76 contravenes the provisions
the Constitution, counsel for the respondent contended that Aiticle 192
the Constitution. 35 In concluding his argument on this point he submitted that if there is a provision in the Constitution which provides for the enactment
a law to deal with a certain case, and in this case to give compensation or pension, this does not mean that you cannot regulate the way in which the pension is to 609 > Sanides J. Menelaou v. Republic
the Constitution. Therefore, the enactment
Law 19/76 does not in any way contravene Article 192
the Constitution. The construction
section 8
Law 68/62, was the subject
a recourse in thecaseofPapaneophytou(No. 2)v. TheRepublic
income tax on the applicant in that case for the years 19621966 was in issue. 5 Thejudgment
this Court on appeal reversing thejudgment 10
the trial Court was to the effect that section 8 construed as a whole exempts all payments made under the law whether on cash-down basis or pension from any income tax. In delivering the judgment
the Court, Triantafyllides, P. at page 531, had this to say: 15 "In our opinion section 8 is a provision which has to be applied according to its plain meaning, namely that it was intended by the legislature that all payments made under the provisions
Law 52/62 should be exempt from income tax; and, in our view, there is included within 20 the ambit
such payments the payment
a pension which, once it has become payable under Law 52/62 is paid on the basis
provisions in the Pensions Law, Cap. 311." And at page 533: 25 "In the light
the foregoing we feel bound to decide that the pension received, by virtue
the provisions
Law 52/62, by the appellant is exempt from income tax because
the plain words
section 8 and, therefore, this appeal has to be allowed; as a result the sub judice 30 decision
the respondent has to be declared to be null and void and
no effect whatsoever". The above judgment was delivered on the 28th September, 1976. On the 14th May, 1976, Law 19/76 was enacted for the purpose
amending section 8oftheCompensation (Entitled 35
ficers) Law (Law 52/62) by clarifying the said section and making it applicable to all other cases
payment
the compensation free
income tax, other than pension. 610 3 C.L.R. Menelaou v. Republic Savvides J. The scope
and
the provisions
Law 52/62 have been the subject
judicial pronouncement in a number
casesboth in the old Supreme Constitutional Court
Cyprus and the present Supreme Court in which the jurisdiction
5 the Supreme Constitutional Court and the Supreme Court have been vested. In All Suleiman and The Republic (Minister
Finance and Public Service Commission)
vested rights under Article 192
the Constitution, had this to say at 10 pp. 96 and 97: 15 20 "In the opinion
the Court the rights under paragraph 3 are only vested in the holder
an
fice mentioned in paragraphs 1 and 2
in all cases where the holder
such an
fice is not appointed in the public service
the Republic. It follows, therefore, that in thecaseoftheholder
anoffice, whichcomes,by operation
the Constitution, within the competence
a Communal Chamber, the rights under para. 3, which such person must waive, as provided in paragraph 4, if he chooses to serve under a Communal Chamber, only become vested in such person if he is not appointed in the public service
the Republic." And at page 102: 25 30 "The Court having found that the Applicant has not been lawfully and validly appointed in the public service
the Republic for the purposes
paragraph 3
so as to prevent the vesting in the Applicant
the rights referred to in that paragraph, is
the opinion that the Applicantis,intheabsenceofsuchanappointment, entitled, in accordance with the provisions
the said· paragraph 3
, tojust compensation or pension on abolilition
fice terms out
the funds
the Republic whichever is more advantageous to him." In Papapetrou v. The Minister
Finance
Triantafyllides J. (as he then was): "On the 7th July, 1962, Law 52/62 was promulgated. Such Law was undoubtedly intended to promote the application
provisions
the Constitution, 611 Savvides J. Menelaou v. Republic
persons holding
fices in the public service before the date
the coming into operation
the Constitution. But Law 52/62, being an ordinary legislative enactment, could not validly amend Article 192, which is part
the Fundamental Law
5 the Republic. Nor can Law 52/62, be, necessarily, treated as dealing fully with all matters within the ambit
such Article; it is to be observed, for example, that the definition
'entitled
ficer', in section 2
Law 52/62, is, on the face
it, different—in wording at any rate—from the 10 definition
what was a public
ficer before the 16th August, 1960, for the purposes
, as such definition is to be derived from the definition
'public service' in paragraph 7(a)
; and, whether or not the two definitions should be treated as being the 15 same, though differently worded, is a matter which I leave entirely open at the moment, but about which I should say that, as at piesent advised, I do have some doubt". And at pages 506 and 507 the following is said: "After carefully considering this case—on its proper, 20 in my opinion, basis—I have reached the conclusion that the said issue
constitutionality does not have to be resolved in the present Judgment. As already stated, the Applicant had applied for compensation under Law 52/62; since Law 52/62 cannot, and should not, be treated 25 asbeingexhaustive
the scope
the application
—which does not envisage a Law as being necessary for its application, I cannot see how the definition
'entitled
ficer' in Law 52/62, if it falls short
the whole scope
the application
Counsel for applicant has addressed in length on the question
confidence
the citizen in the acts
the administration and extensive reference was made to Delikostopoulos "The Protection
Confidence in Administrative Law". In the 35 present case, however, the respondent did not act arbitrarily but in compliance with the provisions
a Statute enacted by the Legislature and cannot be considered as having acted contrary to law or arbitrarily. The question that may arise, is whether such legislative act can have application in the case 40 612 3 C.L.R. 5 Menelaou v. Republic Savvides J.
the applicant or whether it may be deemed as
fending the rights vested in the applicant by virtue
the Constitution. Kyriacopoulos, to whom reference was made by counsel for applicant and Greek Jurisprudence have dealt with the question
vested rights as well as the question
retrospective effect
legislation on vested rights. In Kyriacopoulos, "Greek Administrative Law", Vol. 4th ed. at pp. 94 and 95 it reads: 10 15 20 25 30 35 4Q 1, " Ή αρχή της μή αναδρομικότητας τών νόμων διατυττοΰται, συνήθως ο ύ τ ω : νέος τις νομικός κανών 5έν επιτρέπεται να προσβάλλη 'κεκτημένα δικαιώματα*. ΤΙ δέον δμως νά έννοώμεν υπό τόν ορον 'κεκτημένα δικαιώματα' (jus quaesitum), είναι δύσκολον νά καθορισθη. Ό δρος 'κεκτη μένα δικαιώματα' έδημιουργήθη αρχικώς προς διάκρισιν ά π ό τών "φυσικών δικαιωμάτων*. 'Αλλ* ή περί αυτών θεωρία έγκατελήφθη π ρ ό πολλοΰ. "Η δε σύγχρονος επι στήμη δέχεται, Οτι ουδέν δικαίωμα υφίσταται μή άπονεμηθέν Οπό τοΰ δικαίου, δέχεται δηλαδή ότι, έφ' δσον, ύ π ' αυτήν τήν εννοιαν, αποκτάται δικαίωμα τί, πάντα τ α δικαιώματα t\vct\ κεκτημένα, άλλως δέν πρόκειται περί δικαιωμάτων. Ή παρεχομένη δέ είς αυτά προστασία έγκειται έν τ ώ δτι ή Οπερ τοΰ άτομου αναγνωριζομένη νομική κατάστασις δέν επιτρέπεται, άνευ συγκαταθέσεως αύτοΰ, νά μεταβληθη έπϊ τ ά χείρω έκ μέρους τοΰ κράτους. Διό και εις τό κεκτημένον δικαίωμα διαβλέπουσιν οι συγγραφείς τήν έννομον άϋίωσιν τήν οποίαν άναμφισβήτως έχει ώρισμένον πρόσωπον. 'Αλλ* ό κανών, δτι τό κεκτημένον δικαίωμα εΐναι άπρόσβλητον έκ μέρους τοΰ κράτους, υπόκειται είς πλείστας εξαιρέσεις καθ' άς επιτρέπεται ή στέρησις ή άλλος τις περιορισμός Ιδιωτικού δικαιώματος. Προς τό κεκτημένον δικαίωμα δέν πρέπει όμως νά ταυτίζηται ή απλή προσδοκία τοΰ διοικού μενου—δπως λ.χ. καταλάβη δημοσίαν τινά θέσιν—κα'ι δεν προσβάλλεται κεκτημένον τι δικαίωμα αν ούτος αδύνατη πλέον νά είσέλθη είς τήν δημοσίαν ΰπηρεσίαν, λόγω της έν τ ώ μεταξύ επελθούσης τροποποιήσεως της νομοθεσίας, ούτως ώστε, κατά τόν νεώτερον νόμον, νά μή συγκεντρώνη τά απαραίτητα προσόντα. "Αλλως τε, δεδομένου δτι ώς ελέχθη, παν δικαίωμα απονέμεται ύπά τοΰ δικαίου και, επομένως, αποκτάται ύπ* αυτήν τήν εννοιαν, δέον έν έκαστη περιπτώσει νά ερευνάται π ο ί α δικαιώματα προστατεύονται ν 613 Savvides J. Menelaou v. Republic
non-retrospectivity
laws is formulated usually as follows: a new legal canon should not
fend 'vested rights'. But what should be meant by the term 5 'vested rights' (jus quaesitum) is difficult to be defined. The term 'vested rights' was created at first for purposes
distinction from 'natural rights'. But the theory about them has been abandoned a long time ago. Modern science accepts that no right exists which has not been 10 granted by law, in other words it accepts that, since under this meaning a certain right is acquired, all rights are vested rights or else they are not rights. The protection given to them lies in the fact that the recognised legal position in favour
the person cannot be altered to his 15 detriment by the State without his consent. For this reason the authors infer from the vested right the lawful claim which undoubtedly a certain person has. But the rule that the vested right cannot be
fended by the state is subject to many exemptions whereby depriva- 20 tion or any other restriction
a private right is permitted. A vested right should not be identified with a mere expecta tion
the citizen i.e. his appointment to a public
fice— and a vested right is not
fended if he cannot be appointed in the public service, due to the, in the meantime, amend- 25 ment
the legislation, so that according to the later law he does not possess the required qualifications. Otherwise given that as stated, every right is given by the law and, therefore, acquired under this notion we must in each case enquire as to which rights are protected against the 30 retrospective effect
the new law i.e.they are considered vested rights"). And at page 97
same: "Κεκτημένον δικαίωμα έχει ό υπάλληλος π.χ. έπϊ τοΰ μισθού, συντάξεως αύτοΰ, αλλά δέν σημαίνει ότι ό νομοθέτης δέν 35 δύναται νά μείωση γενικώς τους μισθούς τών δημοσίων υπαλλήλων ή νά καθσρίση άλλην βάσιν υπολογισμού τών συντάξεων". ("An
ficer has a vested right e.g. on his salary, his pension 614 3 C.L.R. Menelaou v. Republic Savvides J. but this does not mean that the legislator cannot reduce generally the salary
public
ficers or fix a new basis for the calculation
pensions"). There is a number
decisions
the Greek Council
5 State supporting the above exposition
the law (vide Decision No. 236/1932 where it was held that the appointment in the civil service is a matter
public law, the contents
which are governed by the Laws and Regulations enacted from time to time and can be changed as they are not terms
contract. 10 Also, Decision No.965/35 in which it was held that,the legal relationship between the State and thecivil servant is regulated by the rules
public and not private law and can be freely changed by the legislator, so long as there is no constitutional obstacle and consequently the rights and obligations
either 15 side are not governed always by the law in force at the time
the appointment
the civil servants and independently
subsequent legislation changing that law). I wish to adopt for the purpose
this case, what was said by Loizou Α., J. in Economides v. The Republic (Council
20 Ministers andAnother)
law, that administrative acts may not be given retrospective effect, except when they fall within the recognised exceptions with which we are not concerned here. It is equally true that a new law or regulation, cannot
fend a vested right. Such a right is one given by law and the protection afforded to it is that the recognised legal state cannot be changed to the detriment
the person having it, without his consent; but the vested right must not be confused with a mere expectation
the citizen. (See Kyriacopoulos, Greek Administrative Law, Vol. 1, 4th Ed. p. 95). It may be said here thatin myjudgment thereis no such vested right as a right to promotion or that the required qualification for a particular promotionpost will not be changed before any promotion is effected. There is an expectation for it and nothing more". And at page 521: "The relationship, therefore,
State and civil servant, being a matter
public and not private law, can be regu615 Savvides J. Menelaou v. Republic
constitutional safeguards by new laws, regulations and decisions effecting changes to those existing at the 'time
the appointment. This unlike the cases
contractual relationship falling within the ambit
private law whereby the terms
a contract may not 5 be changed during the time that it is in force without the consent
the parties". Such constitutional safeguards do exist under Art. 192
the Constitution, in respect
civil servants who were holding
fice immediately before the date
the coming into operation 10
the Constitution and have been judicially pronounced in a number
cases. (Vide AHSuleiman and TheRepublic (supra) Loizides and others and The Republic
the applicant in this case. The applicant was a civil servant who was covered under the provisions
a lump sum relying on the provi- 25 sions
section 8
Law 52/62 and considering that as "the more advantageous on abolition
fice terms", as provided by Article 192
the Constitution. Ever since he ceased to be a civil servant as defined in section 2
Law 33/67 which reads, as follows: " 'Δημόσιος υπάλληλος' σημαίνει τόν κατέχοντα δημοσίαν θέσιν είτε νομίμως είτε προσωρινώς είτε άναπληρωτικώς". (" 'Public
ficer' means the holder, whether substantive or temporary or acting,
a public
fice"). The definition
a "civil servant" or a "public
ficer" is 35 also found in Article 122
the Constitution, where a "public
ficer" is defined as "the holder whether substantive or tempo rary or acting
a public
fice" and "public
fice" is defined as "an
fice in the public service". 616 30 3 C.L.R. Menelaou v. Republic Savvides J . Due to the change
his status, any regulations or any modi fications in the schemes
service or retirement benefits after retirement could not be applicable to him. Law 19/76 which amended section 8
the previous law, was not given retrospe5 ctive effect and at the time
the enactment
such law, the plaintiff was not "δικαιούχος συντάξιμος υπάλληλος" as appearing in sections 2, 3 and 4
Law 52/62 but he was a retired servant "άφυπηρετήσας συνταξιούχος υπάλληλος" and any relationship between the Government and the applicant 10 in respect
employment had already been ended by the retire ment
the applicant prior to the enactment
Law 19/76. All the authorities to which reference has already been made under the Greek Administrative Law and the Greek jurispru dence, refer to cases where the employment
the civil seivant 15 was still existing and the relation between the civil servant and the State was continuing, in which case there was power
the State to regulate such relation by any subsequent legislation. They do not refer to cases where such relation has ended by the retirement
the civil servant prior to the enactment
any 20 subsequent legislation and especially in a case like the one under consideration where the applicant has acquiied a vested right under the provisions
Law 52/62 which was enacted to promote the application
the provisions
the Constitution. The position might have been different, if a 25 peison had to exercise his option after the enactment
Law 19/76 and in such case he would have the opportunity, before exercising his option, to consider what would have been more advantageous tohim,as provided by Article 192
theConsti tution. 30 35 In the result, I am
the opinion that the applicant has a vested right safeguaided by the provisions
the Constitution and Law 52/62 and which, right, has been exercised by the applicant by electing what was most advanta geous to him under the provisions
the Constitution and Law 52/62. Therefore, I find the provisions
section 2
Law 19/76 in so far as theapplicant is concerned, as unconstitutional and I declare the acts
the respondent complained
, as null and void and
no effect whatsoever. 617 Savvides J. Menelaou v. Republic
this case in mind, I make no order for costs. Sub judice decision annulled. No order as to costs. 618
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.