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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 52
1989 January 14
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MAGDA IOSIFAKI,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER
OF FINANCE,
Respondent.
(Case No. 1045/87)
Legitimate interest - Constitution, An. 146.2 - Free and voluntary acceptance of sub judiceact - Deprives applicant of legitimate interest.
General principles of Administrative Law - Presumption of regularity - Unsubstantiated allegation that the acceptance of sub judice act was not voluntary - In the absence of evidence, the presumption applies.
Constitutional Law - Equality - Constitution, Art. 28 - Free and voluntary acceptance of transfer abroad subject to condition that no expatriation allowance would be paid - Refusal to pay such allowance - In the absence of a similar case, i.e. transfer subject to such condition freely accepted in which the allowance was paid, there has been no infringement of the principle of equality.
The facts and principles applied by the Court in this case sufficiently appear in the hereinabove Headnotes.
Recourse dismissed. No order as to costs.
Cases referred to:
Republic v Ekkeshis (1975) 3 C.L.R. 548,
Ierides v. Republic (1980) 3 C.L.R. 165,
Papadopoulou and Another v. C.B.C. (1985) 3 C.L.R. 2274,
Alexandrou and Others v. Republic (1986) 3 C.L.R. 2554.
Recourse.
Recourse against the refusal of the respondent to pay expatriation allowance to applicant.
A. S. Angelides, for the Applicant.
A. Vassiliades, Counsel of the Republic B, for the Respondent.
Cur adv. vult.
KOURRIS, J. read the following judgment. By the present recourse applicant challenges the decision of the respondents dated 4/12/1987 whereby the claim of applicant for the payment of expatriation allowance was rejected by the respondents.
Applicant joined the Civil Service on 15/6/1970 and in 1982 was posted as clerk 2nd Grade in the Ministry of Finance. On 2/4/1982 applicant addressed a letter to the Director Public Administration and Personnel Service asking to be transferred to the Cyprus High Commission in London without payment of expatriation allowance but she reserved her rights for the payment of expatriation allowance.
Applicant on 28/4/1982 addressed a new letter to the Director General of the Ministry of Finance stating that she was willing to be transferred to the Cyprus High Commission in London without payment of expatriation allowances and without any reservation of her rights to claim same at a later stage. In point of fact she stated inter alia, as follows:-
''Αναφορικά με την επιστολή σας με Αρ. Π1921/ΗΠ ... μου γνωστοποιείτε τους όρους που συνοδεύουν την εν λόγω μετάθεση, επιθυμώ να δηλώσω υπεύθυνα και κατηγορηματικά ότι αποδέχομαι χωρίς επιφυλάξεις και συμφωνώ τόσο με την μετάθεση όσο και με τους όρους που την συνοδεύουν. Την αποδοχή μου αυτή εκφράζω με ελεύθερη θέληση.''
Applicant through her lawyer applied to the Minister of Finance in 1986 claiming expatriation allowances but the respondent on 4/12/1987 rejected the claim of the applicant on the ground that she accepted her transfer to the Cyprus High Commission in London without payment of expatriation allowances and without any reservation of her rights. Hence, the present recourse.
Counsel for the respondents raised the point that applicant has no legitimate interest to file a recourse because her acceptance to be transferred was free and without any reservations.
Counsel for applicant alleged that the letters dated 2/4/1982 and 28/4/1 982 were written by applicant as a result of pressure and duress exercised on the applicant by the authorities concerned. In his written address he went even so far as to state that these letters were the result of threats. He alleged that the letter of 2/4/1982 was dictated to the applicant through telephone and that applicant did not know the contents of the letter of 28/4/1982. It is the contention of the applicant that she merely signed a blank piece of paper and that it was filled in by the Authority concerned.
These allegations were denied by the respondents and during the hearing of this recourse the aforesaid allegations were not substantiated by applicant. In view of the presumption of regularity pertaining to administrative acts and/or decisions I am satisfied that applicant did not rebut these presumptions and consequently it appears that the Authority concerned acted properly and lawfully (see Republic v. Ekkeshis (1975) 3 C.L.R. 548 and Ierides v. Republic (1980) 3 C.L.R. 165).
Reverting now to the question whether applicant has a legitimate interest or not I am satisfied that the applicant has no legitimate interest to file the present recourse. She accepted her transfer without payment of expatriation allowances, free and unreservedly (see Papadopoulou and Another v. C.B.C.(1985) 3 C.L.R. 2274 and Alexandrou and Others v. The Republic (1986) 3 C.L.R. 2554).
The letter dated 15/6/1987 addressed by counsel for applicant to the Ministry for Foreign Affairs does not contain any new material for the re-examination and re-assessment of the circumstances pertaining to the transfer of applicant. With regard to the point raised in this recourse that in view of the circumstances of the transfer of the applicant there has been a violation of Section 28 of the Constitution it cannot stand because the applicant accepted her transfer freely and without any reservation of her rights.
Furthermore, applicant did not cite any case of transfer similar to the circumstances of her transfer whereby the authorities concerned paid an expatriation allowance so as to give rise to Article 28 of the Constitution.
The case of ElpidaPediou referred to by counsel for applicant is distinguished from the present case in that Pediou never accepted her transfer to the Cyprus High Commission in London without reservations for nonpayment of expatriation allowances. Therefore, this point also fails.
For all the above reasons the recourse is dismissed but with no order for costs.
Recourse dismissed. No order as to costs.