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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Δεν έχει εντοπιστεί νομοθεσία ή απόφαση ή δικονομικός θεσμός στον οποίο να κάνει αναφορά η απόφαση αυτή
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1985) 3 CLR 1363
1985 June 28
[DEMETRIADES, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
CHARLES DE CHEDID AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE DIRECTOR OF CENTRAL PRISONSAND OTHERS,
Respondents.
(Case No. 661/84).
Administrative Law-Administrative acts or decision-Executory act-Decision of Committee set up under regulations 140-146 of the Prisons (General) Regulations, 1981-Refusing a prisoner the right, under regulation 144, to be prepared for rehabilitation and reintegration into society and to earn a living whilst serving a sentence-An executory act which can be attacked by a recourse under Article 146 of the Constitution.
Prisoners-Employment outside the Prisons-Regulation 144 of the Prisons (General) Regulations, 1981-Requirements thereof regarding exemplary behaviour and industry during stay in prison-Not fulfilled by applicants-Decision of respondents refusing their application for employment outside the prison sustained.
Administrative Law-Administrative acts or decisions-Reasoning-Other than the one of the sub judice decision-Derived from material existing in the files of the administration.
The applicants, who were foreign nationals serving sentences of imprisonment imposed on them by Courts of the Republic, submitted an application to the respondents by which they requested that they be selected for employment outside the prison, as they were eligible for such treatment in that they were fulfilling the requirements ofregulation 144 of the Prison (General) Regulations, 1981. The respondents rejected their application and hence this recourse. Under the said regulation 144 a prisoner may be selected for employment outside the prison if during his stay in prison he has proved trustworthy and has shown exemplary behaviour and industry. The reasons for refusing applicants, applications, as appearing in the relevant files were that the applicants being, aliens and having not secured employment permits were not entitled to work outside the prison.
Held (1) on the contention of counsel for the respondents that the sub judice decision is not an administrative act and, therefore, not one that can be the subject of a recourse to this Court:
That since the intention of the legislature in introducing regulations 140-146 was to set up a body termed the "Committee", the duty of which is-
(a) the establishment of a Prisoners' Guidance Centre, the purpose of which is to prepare prisoners for their rehabilitation and reintegration in the community, and
(b) to allow prisoners to earn a living whilst serving their sentence, the decision of the Committee, once taken, gives or refuses a prisoner the right to be prepared for rehabilitation and reintegration into society and to earn a living whilst serving his sentence; and that, therefore, any decision of this nature taken by the Committee is an executory act which can be attacked by a recourse under Article 146 of the Constitution.
(II) On the merits of the recourse:
That from the material placed before this Court there does not appear that anyone of the applicants had secured an employment permit, but as there is another legal reasoning, which may be derived, from the material in the personal files of the applicants, which, it is presumed, were before the Committee when, it reached the sub judice decision, namely that the applicants do not fulfil the requirements provided for by regulation 144, in that they have dot shown exemplary behaviour and industry during' their stay in prison, there is no need to express an opinion as to whether or not they are entitled to work outside the prison despite the fact that they have not Secured an employment permit; accordingly the recourse must fail.
Application dismissed.
Recourse
Recourse against the refusal of the respondents to select applicants, who are serving sentences of imprisonment imposed on them by Courts of the Republic, for employment outside the prison.
A. Eftychiou with N. Papamiltiades, for the applicants.
E. Loizidou (Mrs.), for the respondents.
Cur. adv. vult.
DEMETRIADES J. read the following judgment. This recourse was originally filed by six applicants who were and/or are still serving sentences of imprisonment imposed on them by Courts of the Republic.
Applicants 4, 5 and 6 have, since the filing of this application, been released and deported from Cyprus and their counsel, at the close of the hearing, sought leave to withdraw their application which, as a result, was dismissed.
Applicant No. 1, Charles De Chedid, was sentenced by the Limassol Assizes to 18 months' imprisonment for uttering false documents and obtaining money by false pretences. Applicant No. 2, Jean Jacques Chenier, was sentenced by the Limassol Assizes to 18 months' imprisonment for uttering false documents and obtaining money by false pretences. Applicant No. 3, Joseph Farah, was sentenced by the Limassol Assizes to five years' imprisonment for unlawful possession of controlled drugs with the intent to supply same to others.
All the applicants are foreign nationals and on the 13th November, 1984, through their counsel, applied to the Director of Prisons, in his capacity as such and as Chairman of the Committee for the "Prisoners' Guidance Centre, Working-out Scheme and Temporary Release", to be selected by the Committee for employment outside the prison on the ground that they fulfil the prerequisites required or provided by regulation 144 of the Prisons (General) Regulations, 1981 (see No. 18 in the Third Supplement, Part 1, to the Official Gazette of the 30th January, 1981).
As the request and/or application of the applicants was turned down by the Committee, they have filed the present recourse by which they seek a declaration that the said decision of the Committee and/or their refusal to select the applicants for employment outside the prison, which' decision and/or refusal was communicated to their counsel by letter dated the 24th November, 1984, is null and void.
The applicants base their recourse on the following legal grounds:-
(a) The sub judice decision was reached in violation of Article 28 of the Constitution in that it amounts to a discriminatory and unequal treatment of the applicants vis a vis the other prisoners for national, recial and other reasons which are contrary to the provisions of the Constitution.
(b) The sub judice decision was taken contrary to the provisions of regulations 3(1) and 144 of the Prison (General) Regulations, 1981, in that although the applicants fulfil the requirements of these Regulations, they were not selected by the respondents for work outside the prisons.
(c) The sub judice decision was reached in violation of the principles, of equality and of equal treatment.
(d) The sub judice decision is not duly reasoned, and
(e) the sub judice decision was reached in abuse and/or excess of powers.
On the 13th November, 1984, the applicants, through their counsel, submitted an application to the respondents by which they requested that they be selected for employment outside the prison, as they were eligible for such treatment, in that they were fulfilling the requirements ofregulation 144 of the Prisons (General) Regulations, 1981
On the 24th November, 1984, the Director of Prisons, in his said capacity and as Chairman of the "Committe of New Institutions", a term nowhere appearing in the said Regulations, addressed a letter to counsel for the applicants by which he informed them the following:
«Αναφορικά με την επιστολή σας ημερ. 13.11.1984 προς την Επιτροπή Νέων Θεσμών με την οποία ζητείτε την ένταξη στην Εξωϊδρυματική Απασχόληση έξη αλλοδαπών πελατών σας, σας πληροφορούμε ότι η πιό πάνω Επιτροπή εξέτασε την αίτηση στη συνεδρία που έγινε στις 23.11.1984 και ασκώντας την διακριτική της έξουσία απέρριψε την ένταξη τους στο Κέντρο Εξωϊδρυματικής Απασχόλησης.
Διευθυντής Φυλακών,
Πρόεδρος Επιτροπής Νέων Θεσμών».
("With reference to your letter dated 13.11.1984 addressed to the Committee of New Institutions, by which you request the emplacement of six alien clients of yours to the Working-out Scheme, I wish to inform you that the above Committee examined the application at the meeting which took place on the 23.11.1984 and in the exercise of its discretionary power, rejected their emplacement to the Working-out Scheme Centre.")
Regulations 3(1) and 144 of the Prisons (General) Regulations, 1981, read as follows:-
«Μέρος 1. - ΚΡΑΤΟΥΜΕΝΟΙ
Γενικαί Διατάζεις
3.—(1) Οί παρόντες Κανονισμοί θά έφαρμόζωνται άμερολήπτως. Ουδεμία δυσμενής διάκρισις εις βάρος οιουδήποτε κρατουμένου έπιτρέπεται ένεκα της φυλής, τοϋ χρώματος, τοΰ φύλου, της γλώσσης, της θρησκείας, των πολιτικών ή άλλων πεποιθήσεων, της έθνικής ή κοινωνικής καταγωγής της περιουσίας, της γεννήσεως αύτοϋ ή ένεκα οιουδήποτε άλλου λόγου. 'Αντιθέτως, ένδείκνυται ό σεβασμός των θρησκευτικών πεποιθήσεων και ήθικών άρχών της ομάδας εις τήν οποίαν ανήκει ό κρατούμενος.»
("Part 1.-PRISONERS
General Provisions
3.-(1) These Regulations shall be applied, impartially. There shall be no. discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, On the other hand, it is necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs.")
«144. - (1) Κρατούμενος έκτίων ποινήν φυλακίσεως —
(α) μή ύπερβαίνουσαν τούς έξ μήνας' ή
(β) ύπερβαίνουσαν τούς έξ μήνας έφ' όσον έξέτισε τό εν τρίτον τής ποινής του, δύναται, έάν κατά τήν διάρκειαν τής παραμονής του εις τάς Φύλακας άπεδείχθη άξιόπιστος και έπέδειξεν έξαιρετικήν συμπεριφοράν και εργατικότητα, νά έπιλεγή ύπό τής 'Επιτροπής πρός άπασχόλησιν εκτός των Φυλακών τηρουμένων τοιούτων όρων ώς ήθελον έπιβληθή ύπό τής 'Επιτροπής.
(2) Ή 'Επιτροπή δύναται νά διακόψη κατά πάντα χρόνον τήν άπασχόλησιν κρατουμένου έκτός των Φυλακών λόγω τής κακής αύτοϋ συμπεριφοράς ή διαπράξεως ύπ' αύτοϋ οιουδήποτε ποινικού ή πειθαρχικού άδικήματος ή παραβάσεως οιουδήποτε επιβληθέντος έπ' αύτοϋ όρου ή περιορισμού.»
("144. - (1) A prisoner serving a 'sentence of imprisonment-
(a) not exceeding six months; or
(b) exceeding six months if he has served one third thereof, may, if during his stayin Prison he has proved trustworthy and has shown exemplary behaviour and industry, be selected by the Committee for employment outside the Prison, subject to such conditions as the Committee may impose.
(2) The Committee may at any time interrupt the employment of a prisoner outside the Prison as a result of bad behaviour or the committal by him of any criminal or disciplinary offence or as a result of the contravention of any condition or restriction imposed on him.")
Counsel for the respondents submitted that -
(a) The, sub judice decision is not an administrative one falling within the provisions of Article 146 of the Constitution, and that it, cannot be made the subject of a recourse to this Court.
(b) Assuming that it falls within the domain of administrative Law, the sub judice decision
(i) was lawfully taken, it is in accord with the provisions of the Constitution and the principles of administrative Law and was taken in the exercise of the discretionary powers of the respondents,
(ii) is duly reasoned and was taken after due inquiry into all facts and circumstances of the case.
(c) The, applicants being aliens and having not secured employment permit, are not entitled to work outside the prison.
I propose to deal with the first submission of counsel for the respondents, namely that the sub judice decision is not an administrative act and, therefore, not one that can be the subject of a recourse to this Court.
It has been repeatedly decided by the Supreme Court of Cyprus that administrative acts and decisions can only be dealt with by it if they are of an executory nature, that is if they produce legal results concerning the citizen which consist of the creation, amendment or abolition of rights and obligations of an administrative character.
This principle of the Law has been introduced fromGreece and adopted by our Court in a great number of cases dealt with by it.
Counsel for the respondents submitted that decisions relating to the mode and conditions of serving a sentence imposed by Courts are not executory administrative acts and based her submission on a number of judgments of the Council of State in Greece and on Greek legal literature.
The circumstances of this case, however, in my view take it outside the realm of the authorities on which counsel for the respondents relied on. As it appears from the provisions of Part VI of the Prisons (General) Regulations 1981, which is headed "PRISONERS' GUIDANCE CENTRE, WORKING-OUT SCHEME AND TEMPORARY RELEASE", the intention of the legislature in introducing this part of the Regulations (Regulations 140-146) was to set up a body termed the "Committee", the duty of which is-
(a)the establishment of a Prisoners' Guidance Centre, the purpose of which is to prepare prisoners for their rehabilitation and reintegration in the community, and
(b)to allow prisoners to earn a living whilst serving their sentence.
Although I do not lose sight of the fact that not every prisoner is entitled to these privileges, because he has to fulfil certain requirements provided by the Regulations, still I feel that the decision of the Committee, once taken, gives or refuses a prisoner the right to be prepared for rehabilitation and reintegration into society and to earn a living whilst serving his sentence. It is, therefore, my view that any decision of this nature taken by the Committee is an executory act which can be attacked by a recourse under Article 146 of the Constitution.
Having come to this conclusion, the next issue that poses for decision is whether the sub judice decision is duly reasoned.
After the close of the case and as when studying the written addresses submitted by counsel I read in the address of counsel for the respondents that ample reasoning forthe sub judice decision existed and could be found in the file of each applicant, I ordered the re-opening of the case so that the personal files of the applicants be produced.
I have gone through such files and I have noticed that as regards applicant No. 3, Joseph Farah, the reasons, amongst others, for non acceding to his request, were that he did not possess employment permit and that there existed, also, in his case security reasons.
Counsel for the respondents had raised, by means of ground (c) in her opposition, the issue that the applicants being aliens and having not secured employment permits are not entitled to work outside the prison.
From the material placed before me there does not appear that anyone of them had secured such an employment permit, but as there is another legal reasoning, which may be derived from the material in the personal files of the applicants, which, it is presumed, were before the Committee when it reached the sub judice decision, namely that the applicants do not fulfil the requirements provided for by regulation 144, in that they have not shown exemplary behaviour and industry during their stay in prison, there is no need to express an opinion as to whether or not they are entitled to work outside the prison despite the fact that they have not secured an employment permit.
Having found that the applicants do not fulfil the requirements of regulation 144, I do not think that there arises a question of discrimination or of unequal treatment in the case of the applicants.
In the result, the recourse is dismissed but with no order as to its costs.
Recourse dismissed.
No order as to costs.