In the case of Nebil Yilmaz Aziz Guvenler & Ahmet Guvenler v. Ministry of Finance (Supreme Court decision Appeal No. 73/2009, Case No. 2411/2006 issued on 02.02.2012)  the applicants were Cypriot citizens belonging to the Turkish Cypriot community, born and residing in the northern part of Cyprus, currently occupied by the Turkish army. The applicants had applied to the Ministry of Finance for a student grant payable to all students attending tertiary education. Their application was rejected because the law under which these grants were paid[1] requires that the grant is paid to every family that has a child in tertiary education and has its permanent residence in the areas controlled by the Republic (which excludes the northern part of the country). The applicants argued that the Law’s requirement regarding place of residence violates the equality principle safeguarded by Article 28 of the Constitution because it introduces unlawful discrimination against a group of Cypriot citizens. The applicants claimed that the said requirement of the Law runs contrary to Protocol 12 of the ECHR and that it violates well established principles of the EU acquis, but did not specify details.

The Court rejected the application, arguing on the one hand that if the law complained of is declared unconstitutional, then the applicants will derive no benefit since they will have no legal basis upon which to premise their claim for a grant; and on the other hand that in order for the grant to be paid to the applicants an amendment to the law is required, which cannot be performed by the Courts, but only by Parliament.

To justify its reasoning, the Court referred to a previous Supreme Court decision issued a few months earlier, that of Ertalu[2] where the applicants had applied for a student grant under the same law, which was rejected by the Ministry of Finance by reason of the applicants not having their residence in the Republic-controlled area of Cyprus.The applicant’s lawyer had argued that the legal doctrine of refraining from declaring a law unconstitutional where this would not ensure the claimant satisfaction of his/her claim, has unjustifiably undermined the right to equality protected by article 28 of the Constitution. The Court responded to that by stating that the constitutionality check cannot, through the invocation of the equality principle, be transformed into a tool for expanding the scope of the law in areas beyond the legislator’s will.

This decision signals yet another failure of the Courts to invoke and apply the law transposing the Racial Equality Directive (Law N59(I)/2004), which ought to have been applied in spite of any provisions to the contrary in the national legislation. Given that the law complained of indirectly but intentionally excluded Turkish Cypriots from its scope, this should have led the Court to the conclusion that the said law contained indirect discrimination prohibited by law. Also, the legal precedent of refusing to subject any law to the constitutionality test, which effectively (at least in this case) means refusing to test the law for compliance with the anti-discrimination principle, leaves a gap which creates an injustice as well as an issue of non-compliance with the Racial Equality Directive, which requires all discriminatory provisions to be revised.

Comment: The Court’s refusal to revise this provision, hiding behind an alleged reluctance to interfere with the legislator’s will, is highly problematic. The doctrine of refusing to subject laws to the constitutionality test when the result would not have offered satisfaction to the applicant’s claim was judge-made; it was not the result of legislation passed by parliament. The Courts who appear unaware of the changes brought to the Cypriot legal order by the EU acquis.

[1] Law on the provision of Special Grants N. 77(Ι)/1996) as amended. The 1996 law had provided for student grants to be paid to “all Cypriot citizens”; however, when the sealed border between north and south of Cyprus was opened in 2003 and Turkish Cypriots started coming to the south to access services, the law was revised in 2006 in order to exclude Turkish Cypriots from eligibility to claim these state grants.

[2] Gonul Ertalu & Imge Ertalu v. Ministry of Finance, 17 November 2011, Review Appeal no. 104/2008