(1968) 3 CLR 225

1968 April 27

 

[TRIANTAFYLLIDES, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

PANOS PAPANICOLAOU (No.1),

Applicant,

and

THE REPUBLIC OF CYPRUS, THROUGH

THE MINISTER OF HEALTH AND OTHERS,

Respondents.

(Case No. 1/68).

Public Officers—Disciplinary proceedings—Executory and preparatory acts—Subject-matter of a recourse—Article 146.1 of the Constitution—Reference by the Minister of the Disciplinary matter to the Council of Ministers—Investigation thereon by the Council and report to the Public Service Commission—Summons by the Commission to the Applicant to appear before them to answer the disciplinary charge—The Public Service Law, 1967 (Law No. 33 of 1967) sections 80(a) (b) and 82(1) (2)—The summons to the Applicant by the Public Service Commission, as well as the above action of the Council of Ministers are merely preparatory acts—Thus they cannot be made the subject-matter of a recourse under Article 146 of the Constitution—But the action or decision of the Minister set out above, obviously taken under the proviso to section 80(a) of the Law, is an executory act—Which can be attacked on its own by means of a recourse under Article 146—The aforesaid decision of the Minister to refer the matter to the Council of Ministers is part of a composite administrative action—Which can be attacked by recourse on its own, so long as the said composite disciplinary action has not yet been completed by a final act—And which Minister's decision can be attacked, also, by means of a recourse against the final decision in the disciplinary proceedings before the Public Service Commission.

Administrative and Constitutional Law—Recourse under Article 146 of the Constitution—Executory acts—Preparatory acts—Subject-matter of recourse under Article 146—Composite administrative action—An executory act forming part of a composite action may be challenged by a recourse on its own, so long as the said composite action has not yet been completed by a final act or decision-—It can, also, be attacked by a recourse directed against the final outcome of the composite action—See, also, hereabove.

Administrative acts or decisions—Executory acts—Preparatory acts—Composite administrative action—See above.

Executory act—See above.

Preparatory act—See above.

Composite administrative action—See above.

Recourse under Article 146 of the Constitution—Only executory acts can be made the subject-matter of such recourse—Article 146.1—See above.

Disciplinary proceedings—Reference, investigation, summons—See above under Public Officers.

This is a recourse under Article 146 of the Constitution against a summons addressed by Respondent 3, the Public Service Commission to the Applicant under section 82(2) of the Public Service Law, 1967 (No. 33 of 1967), and calling upon him to appear before the Commission, on the 9th January, 1968, in relation to a disciplinary charge brought against him. It was contended by counsel for the Respondents that the summons in question (dated the 22nd December 1967) was not an executory act but merely a preparatory one, and therefore, it could not be made the subject-matter of a recourse under Article 146 of the Constitution. During the argument before the Court on the above issue it was pointed out that in these proceedings there was being challenged not only the validity of the aforesaid summons but, also, the complaint of the Minister, Respondent 1, to the Council of Ministers Respondents 2, upon which complaint an investigation was directed the report thereon having been, ultimately, placed before Respondent 3, the Public Service Commission for the purposes of setting in motion the relevant disciplinary proceedings before the Commission against the Applicant. Counsel for the Applicant submitted that the action taken, as above, in the matter by Respondents 1 and 2 amounts to executory acts, that can be challenged, as such, on their own by this recourse.

Held, (1)(a). It is common ground that a recourse under Article 146 of the Constitution lies only against executory acts (Kolokassides and The Republic (1965) 3 C.L.R. 549; p. 542 on appeal).

(b) An executory act or decision is an act by means which the "will" of the Administration is made known on a given matter, and which aims at producing a legal situation concerning the person affected (see the Conclusions from the Jurisprudence of the Council of State in Greece 1929-1959 pp. 236-237); and the executory nature of an act is closely linked to the requirement, under paragraph 3 of Article 146 of the Constitution, that a person can make a recourse only if an existing legitimate interest of his has beeen adversely and directly affected by the act complained of.

(c) Thus, acts of a "preparatory nature" are not executory acts (See Conclusions etc. supra, p. 239); they merely prepare the ground for the making of executory acts.

(2) (a) In my opinion the summons—as well as the decision of Respondent 3 to address it to the Applicant form a preparatory step in the course of the disciplinary proceedings instituted against him by Respondent 3—the Public Service Commission—under section 82(2) of the Public Service Law, 1967 (See, also, Decision 943/1933 of the Greek Council of State, Vol. 1933 III p. 729, at P. 73°).

(b) The fact that the said summons is a step in the course of disciplinary proceedings already embarked upon—in the sense that Respondent 3 must be taken to have decided before addressing to him the summons—does not render such summons, and the decision behind it, anything more than a preparatory step; preparatory to the final decision of the Commission (Respondent 3) on the merits of the matter.

(c) Thus, this recourse fails in so far as it is aimed at the summons and the decision of Respondent 3 to address it to the Applicant; and it is to that extent dismissed accordingly.

(3) As far as the action of the Council of Ministers— Respondent 2—is concerned i.e. to investigate the matter referred to it by the Minister, Respondent I, and submit a report on such investigation to the Commission—Respondent 3—it is clear from the provisions of sections 80 (b) and 82(1) of the aforesaid Public Service Law, 1967, that it is not of an executory, but merely of a preparatory nature. Therefore, the recourse to that extent fails and is dismissed accordingly.

(4) But regarding the decision of the Minister—Respondent 1—to refer the disciplinary matter in question to Respondent 2, and to set, thus, in motion the process which brought about such matter before the Commission—Respondent 3—, the position is different:-

(a) There is no dispute that the Minister, Respondent I acted in this way pursuant to the provisions of the proviso to section 80 (a) of the Public Service Law, 1967; in other words he decided that the matter should be dealt with by the Public Service Commission (Respondent 3), instead of interdepartmentally.

(b) There is, further, no doubt that in the proceedings before the Commission the Applicant runs the risk of suffering, for the same disciplinary charge, far heavier punishment than what could be inflicted on him if the same charge were dealt with interdepartmentally.

(c) I am, therefore, of the view that the decision of Respondent I (the Minister) to act under the proviso to section 80(a) of the aforesaid Law and refer the matter to the Commission, Respondent 3, does amount to an executory act, and can, be, at this stage, the subject-matter of a recourse on its own; it can, of course, be attacked, also, by means of a recourse against the eventual outcome of the disciplinary proceedings before the Commission (Respondent 3) which at present stand suspended; and after such outcome it can no longer be attacked on its own.

(d) Therefore, the said decision of the Minister—Respondent 1—can be attacked now by this recourse on its own, so long as the relevant composite action has not yet been completed by a final act i.e. by a final decision on the merits on the part of the Public Service Commission, Respondent 3 (see Kyriakopoulos on Greek Administrative Law, 4th ed. vol. C. pp. 98-99, and also the Decisions of the Greek Council of State 1156/1937, vol. 1937 111 p. 951, at p. 954, and 1336/1950 Vol. 1950 A.p. 1076, at p. 1077).

(e) Consequently I rule that this recourse can proceed against the decision of Respondent 1 (the Minister) to refer the matter to Respondent 3 (the Public Service Commission), under the proviso to section 80(a) of the Public Service Law, 1967 (Law No. 33 of 1967).

Order in terms.

Cases referred to:

Kolokassides and The Republic, (1965) 3 C.L.R. 549; and at p. 542 on appeal.

Decisions of the Greek Council of State:

943/¹933 Vol. 1933 III p. 729, at p. 730: 1156/1937,

Vol. 1937 III p. 951 at p. 954; 1336/1950 Vol. A. p. 1076, at p. 1077.

Recourse.

Recourse against a summons addressed by Respondent 3, the Public Service Commission, to Applicant under section 82(2) of the Public Service Law, 1967 (No. 33 of 1967).

L. Clerides with A. Paikkos, for the Applicant.

K. Talarides, Counsel of the Republic, for the Respondents.

Cur. adv. vult.

The following Decision on preliminary legal issues was delivered by:-

TRIANTAFYLLIDES J.: When the hearing of this Case commenced, counsel for the Respondents was called upon to argue the preliminary objection raised by means of ground of law 1 in the Opposition, to the effect that this recourse could not be made against a summons, addressed by Respondent 3, the Public Service Commission, to the Applicant, under section 82(2) of the Public Service Law, 1967 (Law 33/67), and calling upon him to appear before the Commission on the 9th January, 1968, in relation to a disciplinary charge brought against him; the contention of Respondent being that the summons in question, which is dated the 22nd December, 1967 (see exhibit 1), was not an executory act, but merely a preparatory one, and, therefore, it could not be the subject-matter of a recourse under Article 146 of the Constitution.

Counsel for the Applicant, while not disputing the proposition that a recourse under Article 146 lies only against executory acts (see, inter alia, Kolokassides and The Republic, (1965) 3 C.L.R. 549; and at p. 542 on appeal), has submitted that the aforesaid summons was not a preparatory act, but an executory act, in that it was part of disciplinary proceedings which had already been embarked upon.

Of course, when one speaks about challenging the validity of the summons in question one should understand that this involves, inevitably, the validity, also, of the decision of Respondent 3 to address such summons to the Applicant.

An executory (εκτελεστή) act — or decision — is an act by means of which the "will" of the Administration is made known on a given matter, and which aims at producing a legal situation concerning the citizen affected (see the Conclusions from the Jurisprudence of the Council of State in Greece 1929-1959 pp. 236-237); and the, executory nature of an act is closely linked to the requirement, under paragraph 3 of Article 146, that a person can make a recourse only if an existing legitimate interest of his has been adversely and directly affected by the act complained of.

Thus, acts of a "preparatory nature" are not executory acts (see Conclusions etc., supra, p. 239); they merely, prepare the ground for the making of executory acts.

In my opinion the summons, exhibit 1, as well as the decision of Respondent 3 to address it to the Applicant, form a preparatory step in the course of the disciplinary proceedings instituted against him by Respondent 3, and cannot be challenged, as such, by this recourse, as they are not of an executory nature. Their validity may be challenged only in a recourse challenging the validity of the outcome of the said disciplinary proceedings. (See, also, Decision 943/1933 of the Greek Council of State, vol. 1933 III p. 729, at p. 730). The fact that the said summons is a step in the course of disciplinary proceedings already embarked upon — in the sense that Respondent 3 must be taken to have decided to proceed disciplinarily against the Applicant before addressing to him the summons — does not render such summons, and the decision behind it, anything more than a preparatory step; preparatory to the final decision of the Commission on the merits of the matter.

Thus, this recourse fails in so far as it is aimed at the summons, exhibit 1, and the decision of Respondent 3 to address it to the Applicant; and it is to that extent dismissed accordingly.

During the argument on the above issue it was pointed out that in these proceedings there was being challenged not only the validity of the summons dated the 22nd December, 1967 (exhibit ]), but, also, the complaint of Respondent 1, the Minister of Health, to Respondent 2, the Council of Ministers, upon which an investigation was directed by Respondent 2; such investigation was carried out by the Secretary to the Council of Ministers (see exhibit 2), and the report thereof was placed before Respondent 3, for the purposes of the relevant disciplinary proceedings against the Applicant. Counsel for the Applicant submitted that the action taken, as above, in the matter by Respondents 1 and 2 amounts to executory acts, that can be challenged, as such, on their own, by this recourse.

As far as the action taken by Respondent 2 is concerned, it is clear from the provisions of sections 80(b) and 82(1) of Law 33/67 that it is of a preparatory, and not of an executory nature; so, this recourse to that extent fails, too, and is dismissed accordingly.

Regarding the decision of Respondent 1 to refer the disciplinary matter in question to Respondent 2, and to set, thus, in motion the process which brought such matter before Respondent 3, the position is different:-

There is no dispute that Respondent 1 acted in this way pursuant to the provisions of the proviso to section 80(a) of Law 33/67; in other words, he decided that the matter should be dealt with by Respondent 3, instead of interdepartmentally.

There is, further, no doubt that in the course of proceedings before the Commission the Applicant runs the risk of suffering, for the same disciplinary charge, far heavier punishment than what could be inflicted on him if the same charge were dealt with interdepartmentally.

I am of the view that the decision of Respondent 1 to act under the proviso to section 80(a) of Law 33/67, and refer the matter to Respondent 3, does amount to an executory act, and can, thus, be, at this stage, the subject-matter of a recourse on its own; it can, of course, be attacked, also, by means of a recourse against the eventual outcome of the disciplinary proceedings before Respondent 3, which at present stand suspended; and after such outcome it can no longer be attacked on its own.

In my opinion the said decision of Respondent 1 is part of a composite disciplinary administrative action taken against the Applicant; it is executory, because it has had the effect of deciding by which of two legally prescribed processes the charge against the Applicant is to be determined; and, actually, due to it, Applicant is now exposed to the risk of heavier punishment; thus, it comes within the description of an executory act given earlier on in this judgment; therefore, as it has been stated already, it can be attacked by recourse, on its own, so long as the said composite action has not yet been completed by a final act (see Kyriakopoulos on Greek Administrative Law, 4th ed., vol. C. pp. 98-99, and also the Decisions of the Greek Council of State 1156/1937, vol. 1937 III p. 951, at p. 954, and 1336/1950, vol. 1950 A p. 1076, at p. 1077).

I rule, consequently, that this recourse can proceed against the decision of Respondent 1 to refer the matter to Respondent 3, under section 80(a) of Law 33/67.

Order in terms.

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