The Constitution recognises only two ‘communities’ (the Greek and the Turkish) and three ‘religious groups’ (the Latins, the Maronites and the Armenians). The Roma community is deemed to form part of the Turkish community and until the end of 2009 it was not afforded any special status. The Roma were recently recognised by the Cypriot government as a minority within the meaning of the Framework Convention on the Protection of National Minorities; however this policy change did not bring about any actual measures in their favour. The government does not recognise any migrant community as a ‘minority’.
Cyprus has ratified most major international conventions on discrimination. In 2000 the basic disability law came into force which included the prohibition of discrimination but did not provide for an implementation mechanism. In 2004 the two anti-discrimination Directives were transposed into four separate national laws:
- a law amending the existing disability law in order to bring it in line with Directive 2000/78;
- a law rendering discrimination in employment unlawful, roughly transposing Directive 2000/78, but on four instead of five grounds (i.e. excluding disability which is dealt with by a separate law);
- a law rendering discrimination on the ground of racial/ethnic origin unlawful in the fields provided by Directive 2000/43 (except employment which is covered by the aforesaid law); and
- the law appointing the Ombudsman as the equality body empowered to investigate complaints of discrimination in accordance with article 13 of Directive 2000/43, the mandate of which goes well beyond the minimum prescribed by the said Directive to include the safeguarding of rights guaranteed by the Constitution or by the Conventions ratified by Cyprus, which includeProtocol 12 of the ECHR and most notably nationality as a prohibited ground of discrimination.
The above laws (except the equality body law) have been repeatedly amended over the years in order to correct inadequate transposition measures.
In July 2006, pursuant to the Cypriot government’s obligation to give supremacy to EU regulations and directives, the Cypriot Constitution was amended to give supremacy to EU laws. Until then, the Constitution was the supreme law of the country. Prior to this development, the anti-discrimination provision of Article 28 of the Cypriot Constitution was interpreted by the Courts to mean that any positive measures taken in favour of vulnerable groups were violating the principle of equality enshrined in the Constitution.
The amendment renders the positive measure provisions of EU directives superior to the Constitution and thus unchallengeable on the basis of Article 28, although the body of law emerging from the decided cases tends to ignore the anti-discrimination Directives and to establish norms which are of doubtful validity when seen through the lenses of the anti-discrimination acquis. In particular, despite the aforesaid constitutional amendment, there continue to be Court decisions issued which reject positive action in favour of vulnerable groups on the reasoning that they violate the principle of equality.. Although the disability law transposing Directive 20000/78 clearly states that quotas and positive measures do not violate the equality principle, this does not seem to affect court decisions who continue to treat the Constitution as the highest form of law in the country. In 2011 a body of Court decisions emerged dealing with claims of age discrimination deriving from the fixing of different retirement ages for different categories of employees, depending on their age or rank. The treatment of these claims by the Courts reveals trends and practices which are not altogether compliant with the equality acquis, such as widening the scope of the exceptions to the non-discrimination principle and introducing concepts such as “reasonable discrimination which must be done because of the special nature of things.”
Current practice suggests that the duty to ensure that discriminatory laws, contractual provision or internal rules of organisations have been explicitly repealed, as required by the Equality Directives, is not fully complied with. The process of formal repeal of laws or regulations is triggered off only after a complaint is submitted to the equality body; there is no procedure for continuous reviewing of existing legislation for the purpose of assessing compatibility with the anti-discrimination directives. Even when a discriminatory legislative provision is reviewed in the framework of a judicial process, this does not trigger the procedure of revision. Moreover, where the equality body finds that a certain law or regulation violates the Directives, the procedure for repealing them, which is for the equality body to refer them to the Attorney General who will then inform the competent Minister and prepare the amending legislation, does not always bear fruit. As a result we have a situation where a number of discriminatory laws and regulations against which a decision of the equality body has been issued, remain in force pending formal repeal.