By Andreas Hadjigeorgiou
Arnisidikia (αρνησιδικία) is an interesting Greek concept, without an English counterpart, which usually translates into ‘denial of justice’. More precisely, though, it refers to any refusal to judge, try, or issue a judicial decision on the merits of a case. The term has been used to refer to the refusal of the Greek Attorney-General to prosecute certain criminal cases, or the denial of a request to hear a case, 4 years after its submission, because the elderly applicant mistakenly paid €4,16 less than the €104,16 mandatory fee. It has been further used to negatively describe the long delays in the judicial process – which may cause the ruling to be of no use to the applicant when finally delivered. The phenomenon of arnisidikia has even been described as the greatest form of terrorism.
A Cypriot Supreme Court precedent, though, established by Dias United (Publishing Co. Ltd. v. Κυπριακής Δημοκρατίας, προσφ. αρ. 870/91, 05/12/1996), manifests this phenomenon in it’s most literal expression to date.
The Dias United judgment
The facts of the case are simple. Legislation (περί Λαχείων Νόμου Κεφ. 74) criminalised the organisation of lotteries (art.10) with certain exceptions (art.11). Subsequently, this legislation was amended (περί Λαχείων (Τροποποιητικό) Νόμο του 1986 (Ν.71/86)) to include within the exceptions (art.11) ‘any lottery organised by and on behalf of RIK (the public broadcasting station otherwise known as CyBC) for the purposes of its radio or television shows, with the permission of the Minister of Finance’. The applicants, Radio Proto (a private station), applied to the Minister of Finance for permission to organise lotteries. A reason they cited for this request (as written in the judgment) was in order to ‘combat the financial situation/problem that was produced by the continuous unfair competition (or monopoly) by RIK’. The Minister, in denying the request, noted that he lacked authority to grant such licence. The applicants filed a case under administrative law, which was taken by the Supreme Court directly.
The applicants (Radio Proto) sought the judicial annulment of the Minister’s decision not to grant them a licence. Their argument was that his decision, as well as the underpinning legislation, violated the principle of equality (art. 28 of the Cypriot Constitution) since ‘it grants selectively/arbitrarily the right to organise lotteries only to RIK and no other station’. The Counsel for the Government (which represented the Minister in Court), noting RIK’s public and non-profit character, claimed that this distinction was justified without violating constitutional rights. The Court, though, failed to agree with either side, as it refused altogether to assess the constitutionality of the decision, and the law itself.
The legal reasoning developed by the Court is perplexing. The best one can make of this reasoning is as follows:
1. The claim of the applicants was initiated by their request for a licence to organise lotteries.
2. Any judgment finding that the law (which the decision was based upon) constitutionally violates the principle of equality (art. 28) would have no practical impact towards the fulfilment of the request for such a licence, because:
a. In order for such a licence to be granted, legislated legal provisions need to be in place.
b. The verdict that the law (or certain of its provisions) are unconstitutional would invalidate the law (or the relevant provisions), and there would be no legal rules for the Government to apply when re-examining the applicants request for such a licence.
c. Due to the constitutionally structured separation of powers, this absence of legal provision(s) cannot be filled or supplemented with a judicial decision, contrary the legislator’s wishes.
3. It is a legal principle that the Court only assesses the issue of constitutionality where it is practically relevant to resolving the case at hand.
4. Thus, since the claim of the applicants cannot succeed, assessing the constitutionality, or otherwise, of the law (or certain of its provisions) would be merely of a theoretical or academic nature, with no practical relevance or impact towards the fulfilment of the original request (for a licence to organise lotteries), and the Court is thus barred from examining it.
From this perspective, the Court concluded:
‘Thus, since it would not be possible, even if the law was declared unconstitutional, for the case to succeed, we are not permitted [or justified] to prompt constitutional review. Such an endeavour would be academic and not in line with our crystallised precedents, according to which the Supreme Court reviews the unconstitutionality of a law only where it is necessary for solving the matter under review.’ (p.558)
Dias United and the Rule of Law
This is an interesting legal conclusion which touches on many layers of the rule of law, while at the same time misunderstanding them. Equality before the law, the separation of powers, as well as judicial constitutional review, intertwine within the function of this concept. On the one hand, the Court is correct in noting that the rule of law, through the separation of powers, prohibits it from legislating or filling the inexistence of legislative provisions. As noted by Lord Bingham in The Rule of Law (Penguin Books, 2011):
‘If the judges were themselves to exercise powers which properly belong elsewhere it would be a usurpation of authority and they would themselves be acting unlawfully.’ (p.68)
Nevertheless, the Court misunderstands the place it occupies, qua the rule of law, within this separation. Tamanaha, in his On the Rule of Law (Cambridge University Press, 2004), describes the struggle to restrain government by law as the first of three recurring themes that have defined this concept. He notes how this sentiment ‘dominated’ the conceptualisation of the rule of law for most of its life. Thus, there are two distinct senses. First, officials must abide by valid law. Second, even where legislators wish to create law, they are not entirely free to do as they like:
‘There are restraints on their law-making power. There are certain things they cannot do with or in the name of law.’ (p.115)
Thus, this separation of powers exists not merely so that only legislators may legislate. It also exists so that Courts can ensure that legislators do not surpass the constitutional limits of their authority. Of course, this idea was replaced, and absorbed, in liberalism via the preservation of individual liberty. The Court, in Dias United, does take a liberal view. However, the individualistic extreme it adheres to, in effect, renders certain constitutional limitations obsolete. Sure, the individual will not find any one given direct benefit from the declaration of a law as unconstitutional. However, what about the benefit of not allowing the government to deny a citizen’s request upon unconstitutional grounds? What about the benefit of altogether obstructing the government from establishing unconstitutional practices? What about the benefit of eradicating unjustified unequal treatment?
Furthermore, it is to wonder, why there should be a need for a direct benefit altogether. The fact that both the government and the legislator surpassed into constitutionally protected territory should be more than enough. After all, the applicants in Dias United only made a request for the Court to annulthe Minister’s decision (which failed to grant them a lottery licence). The applicants did not request that the Court should award such a licence.
The declaration of a law as unconstitutional, firstly, sets limits to the exercise of power – worthily an end in itself. Secondly, following art. 146(6) of the Cypriot Constitution, a judgement by the Administrative Court to annul the Minister’s decision by declaring the law as unconstitutional, would enable the applicants to resort to the District Court and request general damages. Thirdly, such a declaratory decision would become the first in a chain of events which would eventually create the circumstances for the original request to be decided upon constitutional provisions. While it would momentarily leave no legal provision(s) for the re-examination of the applicants’ request for a licence, the government’s lack of response would violate a constitutional obligation to examine and respond to any requests under law within a certain timeframe. Thereafter, for every day the government fails to respond, it is in violation of constitutional obligations, something which incurs costs – if the applicant resorts to the Administrative Court. From there, legal, moral and political pressure is inevitably exerted upon the legislature to act and produce a new law, or new provisions, which will abide by the constitution – or at least they could be re-assessed by the Court.
This is, of course, not ideal; however, in cases of constitutional review, the law is what the Court says it is – especially so in the context of a common law system, such as the Cypriot one. This refusal to assess constitutionality – this arnisidikia – inevitably grants the legislator immunity from a rule of constitutionallaw and enables the government to infringe upon constitutional rights while at the same time acting according to the law, and in this sense ‘legally’ – after all there is a judicially established presumption that laws are constitutional until declared otherwise by a Court (see The Board for Registration of Architects and Civil Engineers v. Christodoulos Kyriakides, (1966) 3 C.L.R. 640).
According to Lord Bingham’s distinction, under its ‘thin’ definition, the rule of law ensures the proper functioning of procedural safeguards and constitutional structures, while under its ‘thick’ definition (which is Lord Bingham’s preferred approach) it should further control whether the law is itself ‘good’ or ‘bad’. From this perspective, the Court’s precedent in Dias United violates the spirit of the rule of law in both its ‘thin’ and ‘thick’ definition – since it neutralises a vital procedural safeguard and part of the constitutional structure, while allowing the possible existence of ‘bad’ laws.
In essence, the Court in Dias Untied is denying an obligationit has, qua its position within the separation of powers. As Lord Bingham nicely notes:
‘[Courts] exercise a constitutional power which the rule of law requires that they should exercise.’ (p.68)
The judgments that followed
The Dias United ruling firmly set a precedent. From its appearance in 1996, this ‘loophole’ – where virtually any applicant ‘lacks’ this ‘direct benefit’ necessary to ‘enable’ the Court to review constitutionality – has been used aplenty in Supreme Court cases. Let us name a few.
First, there is Κώστας Λοϊζου ν Κυπριακής Δημοκρατίας (4 Α.Α.Δ. 717) in 2004. The challenged administrative decision denied the applicant a widower’s pension. His claim was that this decision violated the principle of equality because the law it was based upon provided different criteria for widows and widowers – a discrimination based upon gender. The lawyer representing the Government argued that this distinction was constitutional because it was justified by the different social positions men and women hold within society. The Court replied: ‘I don’t believe that today, in the 21st century, the argument that distinctions within the law based solely upon gender could easily be justified for social reasons’. Nevertheless, the Court was quick to cite Dias United, followed by ‘in light of this precedent the case cannot succeed’ – without providing any further legal reasoning or explanation.
Second, there is Gonul Ertalu ν. Υπουργείου Οικονομικών (4 Α.Α.Δ. 429) in 2008. The applicants challenged an administrative decision denying them a college/university grant because, contra the principle of equality, the law (or provisions) it was based on made a distinction between those who resided in the areas controlled by the Republic of Cyprus and those who resided in the areas under Turkish military occupation – only the former were eligible. The Court noted that this was justified by the fact that only the former group pays taxes, and this grant was given to families instead of tax returns/deductions. Nevertheless, the Court did not proceed to assess the issue of constitutionally; instead, it cited Dias United and declared that ‘in light of this precedent the case cannot succeed’.
Finally, there is the infamous case of Μαρία Βρούντου ν. Κυπριακής Δημοκρατίας (3 Α.Α.Δ. 78) in 2006. The applicant challenged an administrative decision which denied her application for a refugee-id – according to the Cypriot legal system, those who were displaced from the northern to the southern part of the Republic of Cyprus, during or after the Turkish invasion of 1974, are referred to as ‘refugees’. The reason for this refusal was because, contra the principle of equality, the law recognised children of displaced fathers, but not children of displaced mothers. The Court followed the same drill; it cited Dias and concluded that ‘in light of this precedent the case cannot succeed’. Nevertheless, this decision was challenged in the European Court of Human Rights (ECHR). The ruling of the ECHR in Case of Vrountou v. Cyprus (Application no. 33631/06, 13/10/15) was to the point:
‘[In the present case the Cypriot Supreme Court] found itself unable to consider the merits of the applicant’s discrimination claim and thus unable to grant her appropriate relief. The Court readily understands the Supreme Court’s concern to ensure proper respect for the separation of powers under the Constitution of Cyprus and it is not the Court’s place to question the Supreme Court’s interpretation and application of that principle. However, the consequence of the Supreme Court’s approach was that, in so far as the applicant’s Convention complaints were concerned, recourse to the Supreme Court was not an effective remedy for her. Since the Government have not submitted that any other effective remedy existed in Cyprus at the material time to allow the applicant to challenge the discriminatory nature of the refugee card scheme, it follows that there has been a violation of Article 13 of the Convention.’
The ECHR, though, did not go far. While it ruled that there was lack of an effective remedy, it did not specify that this remedy should come from the Cypriot Courts. While Cyprus was found in breach of the European Convention on Human Rights, this did not hinder the Dias precedent. It lives on in the Supreme Court decisions.
There are many cases one could mention. See for example Λοϊζου και άλλοι ν. Κυπριακή Δημοκρατία, αν. εφ. 172/11ημερ. 18/7/18, and Άθου Κωνσταντινίδη και άλλοι ν. Κυπριακή Δημοκρατία, αν. εφ. 129/12 ημερ. 11/1/18, the most recent being the case of Καλακούτη ν. Κυπριακή Δημοκρατία (Αν. εφ. 151/13) delivered December 2019. There the applicant challenged an administrative decision because it was based on a law (or provisions) which made unfair discrimination in favour of those born of British fathers and Cypriot mothers, against those born of British mothers and Cypriot fathers – only the former received reduction to their required military service. The Court, in a unanimous judgment, cited Dias and noted ‘in light of this precedent the case cannot succeed’. It did, however, make a remark. In examining the case of Vrountou v. Cyprus, and in citing the passage quoted above, it noted that ‘we don’t consider that this has any relevance to the present case’. The Court concluded that the Vrountou judgement, and the above passage, only relates to the matter of granting refugee-ids, and it has no connection to this case (military service).
Some closing remarks
‘There are countries in the world where all judicial decisions find favour with the powers that be, but they are probably not places where any of us would wish to live’ (Bingham, op.cit. p.68)
Could the Republic of Cyprus be one of them?
The crystallisation of Dias United as a precedent in the Cypriot legal system positively raises this possibility. Regardless of the legal reasoning behind it, the result is always the same – an arnisidikia. The Cypriot Courts systematically find themselves ‘barred’, by their own customary rules, principles and precedents, to assess the constitutionality of laws and legal provisions – at least insofar as the right to equality is concerned. What is more, the Courts’ arnisidikia carries with it an added cost; in most of these cases the Court found it appropriate to award costs against the applicants – each was asked to pay around €1000. Further, the systemic nature of this arnisidikia effectively communicates a clear message to the Legislator: ‘feel free to disregard art.28 of the Constitution’. This is the story of how a constitutionally guaranteed promise of equality is eclipsed.
Arnisidikia in all its forms is treacherous; however, in this case it might be terminal, at least for any aspirations of equality. The Cypriot legal system in its entirety, as well as the judiciary in specific, have throughout failed to find a way out of this dead end. Could the only cure lie in a more severe conviction by the ECHR? The author is anxious to see what comes next.