Debts to the State and the right to equal protection before the law

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The right to equal protection and treatment before the Law has been recognized by the European Union and the Constitution of the Republic of Cyprus as one of the fundamental human rights. Both the interpretation given to the provisions of Article 20 of the Charter of Fundamental Rights of the European Union by the European Court of Justice and the application of this Article by the Supreme Court of Cyprus show that no exceptions and / or interference can be made in the provisions law’s.

The right to equal protection before the law is a fundamental right which derives from the Charter of Fundamental Rights of the European Union and in particular from Article 20 which establishes the equality of all people before the law, with no exceptions. TheArticle 20 of the Charter of Fundamental Rights was  enshrined and incorporated in the Constitution of the Republic of Cyprus under Article 28 . Specifically,   Article 28 of the Constitution of the Republic of Cyprus , which is clear as to the above-mentioned right, provides the following:

“1. All are equal before the law, the administration and the judiciary and are entitled to equal protection and treatment .

2. Everyone is entitled to all the rights and freedoms provided for in the Constitution, without any direct or indirect discrimination.to the detriment of any individual because of his community, race, color, religion, language, sex, political or other beliefs, national or social origin, birth, wealth, social class or for any other reason , unless otherwise provided by an express provision of the Constitution. “

Therefore, everyone is equal before the law and has the right to equal protection of the law without any discrimination, since Article 28 of the Constitution clearly states that every citizen of the Republic of Cyprus has the right to equal protection. Furthermore, any form of discrimination, direct or indirect, is considered unconstitutional and violates one of the fundamental human rights.

In the light of the above, by establishing the right of every citizen to enjoy equal protection and treatment before the law, administration and justice, Article 28 of the Constitution , at the same time imposes the obligation on the organs of the State, including the Judicial System, to preserve the above right.

In addition, Article 20 of the Charter of Fundamental Rights of the European Union has always been of particular importance and recognition by the European Court of Justice. Specifically in case -15/95the issue of equal treatment of agricultural producers was raised. The European Court of Justice, in the light of the interpretation of the general principle of equality which is one of the fundamental principles of Community law and requires that different situations be treated differently, has ruled that due to principle.

Furthermore, an issue regarding equal treatment and protection before the law was raised and examined by the Supreme Court of Cyprus in the Political Appeal no. 77/2012which concerned the issue of payment of taxes to the State by citizens of the Republic of Cyprus who were refugees and displaced due to the Turkish Invasion. In this Political Appeal, the Supreme Court, after interpreting Article 24 of the Constitution which concerns the payment of taxes and fees to the State in the light of Article 20 of the Charter of Fundamental Rights of the European Union and consequently Article 28 of the Constitution of the Republic of Cyprus, ruled Whereas the refugee citizens of the Republic of Cyprus should be treated equally with other citizens in respect of the payment of taxes to the State, irrespective of their assets lost as a result of the Turkish Invasion.

Therefore, both the interpretation given in relation to the provisions of Article 20 of the Charter of Fundamental Rights of the European Union by the European Court in C- 15/95 and its interpretation by the Supreme Court of Cyprus in the Political Appeal no. 77/2012 , no exceptions and / or discrimination can be made in similar cases.

In the light of the rulings of both the European Court of Justice and the Supreme Court of Cyprus, it is of the utmost importance to consider whether the suspension of criminal proceedings in cases involving debts to the State, including social security, in specific areas of the economy is contrary to the provisions of Article 28 of the Constitutionand consequently the right to equal protection against the Law enacted by Article 20 of the Charter .

Before analyzing and examining the constitutionality of a possible ‘selective’ suspension of criminal prosecution in relation to cases involving social security debts to the State, it is important to raise and note the provisions of the Law on Suspension of Criminal Prosecution and the consequences for any non-payment of social insurance.

According to Article 85 of the Law on Social Insurance 2010 (59 (I) 2010), which includes both employers and self-employed, any failure to pay fees and / or contributions is a criminal offense. In case a person is found guilty of the offense in question, in accordance with the provisions of this Law, he is subject to a prison sentence not exceeding one year and / or a fine not exceeding € 3,400 and / or both.

Further and with regard to the suspension of criminal prosecution for the purposes of this article and as it results from Article 113.2 of the Constitution and Article 154 of the Law on Criminal Procedure (Chapter 155) , the suspension of criminal prosecution is the exclusive power of the Attorney General. Specifically, the Attorney General, as defined by Article 154 of Chapter 155, at any stage of the criminal proceedings may register a stay of criminal prosecution and / or inform the Court that the Republic intends to terminate it with the result that the accused is acquitted of the indictment.

Interpreting Article 154 of Chapter 155 in the light of Article 28 of the Constitution, in case the Attorney General decides to suspend and / or terminate criminal proceedings against a person, he must do the same in other similar cases. Otherwise, any decision will be considered arbitrary and at the same time unconstitutional, since it derives from Article 28  of the Constitution, everyone has the right to equal protection before the law, the administration and the judiciary.

However, in cases where the Attorney General does not suspend criminal proceedings against an individual while he has done so in other similar cases, the Honorable Court may even in such a case safeguard and enforce human rights. The fact that the Attorney General’s right is not subject to judicial review under Article 113 does not mean that the Court cannot act on the results. Relevant is the decision of the Court of Appeal in the case of Kattos and Other, where he stated the following:

The fact that the exercise of the powers of the Advocate General shall not be subject to judicial review under Article 113.2 does not relieve the judicial authorities of the obligation to effectively implement the human rights enshrined in Part II of the Constitution, including the equality enshrined in Article 28. “

In addition and with regard to contributions to the State, the wording of Articles 9 and 24 of the Constitution which concern the social security system and contributions to the public burdens according to the capabilities of each citizen respectively, ensures the provisions and rights arising from the Article 28 of the Constitution . in the first paragraph of Article 9 and Article 24the obligation for contribution to the public burdens is mentioned, but the principle of equality before the Law is expressed and ensured in terms of the payment of fees to the State. The wording of the above articles, and in particular the use of the word “each”, constitutes a rule of equality law, which is promulgated and enshrined in Article 28 of the Constitution and binds the legislator and the administration, regarding these payments. Therefore no discrimination and / or different treatment is possible since the provisions of the aforementioned articles are clear.

Thus interpreting the provisions of Articles 9 and 24 of the Constitution in conjunction with Article 28 of the Constitution and taking into account the ratio decidendi inAppeal Cyprus Radio Foundation and Others Christos Karagiorgis and Others , it is clear that the articles of the Constitution that guarantee the fundamental rights and freedoms of the individual are based on the principle that their exercise will not have any adverse consequences for the individual. Always bearing in mind the explicit provision of Article 20 of the Charter of Fundamental Rights of the European Union, one can conclude that in the event of a decision by the Advocate General to suspend criminal proceedings against persons (whether natural or legal) belonging to specific sectors of the economy in cases involving contributions to the State, this act not only contradicts the provisions of Article 28 of the Constitutionand the Constitution as a whole, but also violates one of the fundamental human rights.

The right to equal protection and treatment before the Law has been recognized by the European Union and the Constitution of the Republic of Cyprus as one of the fundamental human rights. As it appears from the Case Law of both the European Court of Justice and the Supreme Court of Cyprus, no intervention falls within the provisions of the Law. In the event that such a decision is taken which is contrary to the express provisions of the Constitution on equal protection, the Judicial Authorities have the obligation to effectively implement the human rights enshrined in the Constitution.

EARL de Kerlast v Union régionale de coopératives agricoles (Unicopa) and Coopérative du Trieux (C-15/95)
REPUBLIC THROUGH THE MINISTER OF ECONOMIC AND ANOTHER ANDREA R. X “John and WASTE (1994) 3 HRD 401
The Social Insurance On law 2010 (59 (I) 2010)
the Criminal Procedure law (Cap. 155)
BROADCASTING FOUNDATION CYPRUS AND OTHERS CHRIST KARAGIORGOU AND OTHER (1991) 3 HRD 159
the Constitution of the Republic
CHARALAMPOS CHRISTODOULOU KAFKAROS AND ANOTHER REPUBLIC (1995 ) 2 AAD 5
Charter of Fundamental Rights of the European Union (2012 / C 326/02)
CHRYSANTHOS ANTONIOU KATTOU AND OTHER vSTYNOMIAS (1991) 2 AAD 498

Andreas A. Prodromou
Lawyer & Lecturer of Law
Alexander College Larnaca
aprodromoulaw@hotmail.com