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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1977) 3 CLR 165
1977 June 30
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SPYROS A. MYRIANTHIS,
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
1. THE COUNCIL OF MNISTERS,
2. THE MINISTER OF INTERIOR AND DEFENCE,
Respondents.
(Case No. 14/77).
Legitimate interest-Article 146.2 of the Constitution-Acceptance, expressly or impliedly, of an act or decision of the administration, deprives the acceptor of a legitimate interest entitling him to make an administrative recourse for the annulment of such act or decision-But such acceptance should take place unreservedly and freely and not because of fear of adverse consequences-And must be expressed clearly and distinctly and by unambiguous conduct-Sub judice decisions relating, inter alia, to applicant's temporary discharge from the National Guard- Applicant in a hurry to be discharged in order to continue his university studies abroad-Serious doubt whether or not applicant assented to the said decisions freely and without fear of adverse consequences for him in respect of delay of his university studies-In the circumstances he has not behaved in such a way as to divest himself of a legitimate interest entitling him to make a recourse.
The applicant in this recourse complained, inter alia, against the decision of the respondent Minister as a result of which he was granted only a temporary discharge from the National Guard on December 1,1976 and was issued with a "certificate of identity" on December 2, 1976 for the purpose of a single return journey to Greece, instead of being allowed to travel by using his passport as citizens of Cyprus normally travel, being thus free to visit practically all countries of the world.
At the beginning of the hearing of the recourse there arose the issue of whether the applicant was entitled, in view of theprovisions of Article 146.2 of the Constitution, to make this recourse, because allegedly, he has accepted the sub judice decisions and acted on the strength of them.
It was not in dispute that the applicant was in a hurry to be discharged from the ranks of the National Guard and to leave Cyprus in order to go to Athens where he had to continue his university studies and to sit for his next examinations in January, 1977. Counsel for the applicant contended that applicant has never accepted, expressly or impliedly, the said decisions and that, even assuming that he has done so at any stage, his acceptance was not given unreservedly and freely, but out of fear of adverse consequences for him in case he had not acted on the strength of the said two decisions.
Held, (1) that though a person who, expressly or impliedly, accepts an act or decision of the administration, is deprived, because of such acceptance, of a legitimate interest entitling him to make, an administrative recourse for the annulment of such act or decision in order that the acceptance of an administrative act or decision should deprive someone of the right to challenge it by an administrative recourse for annulment such acceptance should take place unreservedly and freely and not because of fear of adverse consequences otherwise.
(2) That though the applicant was discharged and left for Athens on the strength of the sub judice decisions and that neither when he first came to know of them, nor at any time later, even after he had left Cyprus did he, in any way, reserve his rights in respect of them and only filed this recourse on January 17,1977, in the light of the facts of the case (see p.169 post) and the above principles, of Law, this Court is in serious doubt whether or not the applicant has accepted the said decisions freely and without fear of adverse consequences for him in respect of his university studies in case he did not agree to leave the ranks of the National Guard on the strength of a temporary discharge and to travel to Athens by using a certificate of identity; and that, therefore, it cannot be held that, in the circumstances., he has behaved in such a way as to divest himself of a legitimate interest entitling himself to make this recourse, which has to proceed to be determined on its merits.
Order accordingly.
Cases referred to:
Piperisv. Republic (1967) 3 C.L.R. 295 at p. 298;
loannou and Others v. Republic (1968) 3 C.L.R. 146 at p. 153;
Markou v. Republic (1968) 3 C.L.R. 267 at p. 276;
Pericleous v. Republic (1971) 3 C.L.R. 141 at pp. 145, 146;
Republic v. Pericleous (1972) 3 C.L.R. 63;
Case Nos. 1341/1966 and 2087/1970 of the Greek Council of State.
Recourse.
Recourse against the decision of the respondents as a result of which applicant was granted only a temporary discharge from the National Guard and was issued with a "certificate of identity" for the purpose of a single return journey to Greece, instead of being allowed to travel by using his passport.
A. Anastassiades with A. Myrianthis, for the applicant.
A. Frangos, Senior Counsel of the Republic, for the respondents.
Cur.adv. vult.
The following interim decision was delivered by:-
TRIANTAFYLLIDES, P.: By the present recourse the applicant complains, in effect, against decisions of the respondent Minister of Interior and Defence (respondent 2) as a result of which the applicant was granted only a temporary discharge from the National Guard, on December 1, 1976 (see exhibit A) and was issued with a "certificate of identity" on December 2, 1976 (see exhibit C), for the purpose of a single return journey to Greece, instead of being allowed to travel by using his passport as citizens of Cyprus normally travel, being thus free to visit practically all countries of the world.
Furthermore, the applicant complains against a decision of the respondent Council of Ministers (respondent 1) No.15243, taken on September 16, 1976, by means of which there were called up for service as reservists in the National Guard, immediately after the completion of the normal period of their service envisaged by the relevant legislation, those-(including the applicant)-who belong to the 1974 B'/ΕΣΣΟ class of conscripts.
At the beginning of the hearing of this recourse there arose the issue of. whether the applicant is entitled, in view of the provisions of Article 146.2 of the Constitution, to make this recourse, in respect, in particular, of the afore v. mentioned decisions of respondent 2, because, allegedly, he has accepted the said decisions and acted on the strength them.
It is well established, by now, in the administrative law of Cyprus, on the basis of relevant principles which have been expounded in Greece in relation to a legislative provision there (section 48 of Law 3713/1928) which corresponds to our Article 146.2 above, that a person, who, expressly or impliedly, accepts an act or decision of the administration, is deprived, because of such acceptance, of a legitimate interest entitling him to make an administrative recourse for the annulment of such act or decision (see, inter alia,Πορίσματα Νομολογίας του Συμβουλίου της Επικρατείας, 1929-1959, pp. 260-261, Piperis v. The Republic, (1967) 3 C.L.R. 295, 298, Ioannou and others v.The Republic, (1968) 3 C.L.R. 146, 153, Markou v.The Republic, (1968) 3 C.L.R. 267, 276 and Pericleous v.The Republic, (1971) 3 C.L.R. 141, 145, 146).
It is quite clear that in order that the acceptance of an administrative act or decision should deprive someone of the right to challenge it by an administrative recourse for annulment such acceptance should take place unreservedly and freely and not because of fear of adverse consequences otherwise (see,Πορίσματα, supra, p. 261, Κυριακοπούλου Ελληνικόν Διοικητικόν Δίκαιον, 4th ed., vol. C, p. 124, and the Pericleous case, supra-and it may be pointed out, at this stage, that though the in the first instance decision .in the Pericleous case was reversed on appeal in The Republic v. Pericleous, (1972) 3 C.L.R. 63, there was not disapproved of, on appeal, that part of the first instance decision which is relevant for the purposes of this Interim Decision).
It is quite useful to refer, too, to two relevant decisions of the Council of State in Greece: In case 1341/1966 it was stressed that for the assent to an administrative act or decision to be such as to deprive the person concerned of the right to make a recourse against it, it must be expressed clearly and distinctly and by unambiguous conductfrom which it is to be necessarity inferred that it was intended to assent to the administrative act or decision in question; and from the decision in case 2087/1970 it is to be derived that there must be cogent proof of such assent.
It has been strenuously contended on behalf of the applicant that he has never accepted, expressly or impliedly, the complained of decisions of respondent 2, and that, even assuming that he has done so at any stage, his acceptance was not given unreservedly and freely, but out of fear of adverse consequences for him in case he had not acted on the strength of the said two decisions.
The above contention of the applicant was refuted by counsel for the respondents; and, as there was considerable disagreement concerning relevant factual aspects of the matter, evidence was adduced both by way of affidavits and viva voce.
It is useful, at this stage, to refer to the following salient facts:-
While the applicant was serving as a conscript in the National Guard he filed, on November 5, 1976, a recourse (No. 265/76, see exhibit D), by means of which he challenged the refusal of the Council of Ministers and of the Minister of Interior and Defence to discharge him from the ranks of the National Guard. I need not refer to all the matters which were raised in those proceedings; but, it is relevant to point out that one of them was that the applicant had already been enrolled as a student of Law at Athens University and that he was the victim of unequal treatment because other conscripts of his class had already been discharged for the purpose of proceeding abroad in connection with studies at various foreign universities.
That recourse of the applicant was being heard together with other recourses of a similar nature, by other applicants; the record of the Court for the proceedings on November 17, 1976, reads as follows:-
"Κος Α. Μυριάνθης διά τον αιτούντα.
Κος Ν. Χαραλάμπους διά την Δημοκρατίαν.
"Κος Χαραλάμπους: Έχω εξουσιοδοτηθή υπό του Υπουργού Εσωτερικών και Αμύνης να δηλώσω ότι συμφώνως νεωτέρας αποφάσεως θα γίνουν αι αναγκαίαι διευθετήσεις και θα ληφθούν άπαντα τα απαιτούμενα προς τούτο μέτρα ώστε άπαντες οι εθνοφρουροί οίτινες εγένοντο δεκτοί εις πανεπιστήμια ή εις ισοτίμους ανωτάτας σχολάς οιωνδήποτε χωρών προς παρακολούθησιν πανεπιστημιακών σπουδών απολυθώσιν άνευ όρων κατά την 30ην Νοεμβρίου 1976.
Κος Μυριάνθης: Η δήλωσις του κ. Χαραλάμπους αποτελεί ουχί νέαν απόφασιν αλλά συνέχισιν της αυθαιρεσίας και παρανομίας, αίτινες θα τερματισθούν εις την περίπτωσιν του αιτούντος την 30ην Νοεμβρίου 1976.
Θα ήθελα να μου δοθή χρόνος να συζητήσω με τον Υπουργόν Εσωτερικών εάν δύνανται να γίνουν ειδικαί διευθετήσεις διά τον πελάτην μου λόγω ειδικών περιστάσεων.
Κος Χαραλάμπους: Επιφυλάσσομαι να απαντήσω αργότερον εις την δήλωσιν του κ. Μυριάνθη.
Δικαστήριον: Ή προσφυγή αναβάλλεται διά μνείαν την 20ην Νοεμβρίου 1976 (9 π.μ.)".
("Mr. A. Myrianthis for the applicant.
Mr. N. Charalambous for the Republic.
Mr. Charalambous. I was authorized by the Minister of Interior and Defence to state that, according to a new decision, all necessary arrangements will be made and all the required in this respect measures will be taken so that all conscripts, who have been admitted by universities or other equivalent highest schools of any countries for university studies, will be discharged, without conditions, on November 30, 1976.
Mr. Myrianthis: The statement of Mr. Charalambous does not constitute a new decision but a continuation of the arbitrariness and illegality which in the case of the applicant, on November 30, 1976.
I would like to be given time to discuss with theMinister of Interior whether special arrangements could be made for my client because of special circumstances.
Mr. Charalambous: I reserve my right to reply later on to the statement of Mr. Myrianthis.
Court: The recourse is adjourned for mention to November 20, 1976 (9 a.m.)").
Such recourse was withdrawn on November 20, 1976; the relevant Court record reads as follows:-
"Mr.A. Myrianthis for applicant.
Mr. N. Charalambous for respondents.
Mr. Charalambous: I confirm that the applicant is one of those to be discharged on November 30, 1976.
Mr. Myrianthis states that, in the circumstances, he seeks leave to withdraw this case.
Court: Case dismissed as withdrawn with applicant being at liberty to have it reinstated in case he is not discharged as stated above".
As a result of the above developments the applicant was given a temporary discharge on December 1, 1976, in the form of exhibit A, and a few days later he travelled to Greece on the strength of a certificate of identity, exhibit C.
The temporary discharge was given to the applicant by the Minister of Interior and Defence in the exercise of his powers under section 9 (1) of the National Guard Law, 1964 (Law 20/64), as amended, inter alia, by the National Guard (Amendment) Law, 1965 (Law 26/65); such powers having been delegated to the Minister by the Council of Ministers.
It is not in dispute that the applicant was in a hurry to be discharged from the ranks of the National Guard and leave Cyprus in order to go to Athens where he had to continue his university studies; and, actually, he had to sit for his next examinations in January 1977 (see his affidavit dated May 17, 1977).
In the temporary discharge (exhibit A) there were set out a number of conditions, one of which was that the applicant, either at the conclusion of his studies or in case he comes to Cyprus during the summer holidays, has to serve in the ranks of the National Guard in order to complete what is regarded, by respondent 2, as the remainder of the period of his military service.
It is correct that the applicant was discharged and left for Athens on the strength of exhibits A and C, above, and that neither when he first came to be in possession of them, nor at any time later, even after he had left Cyprus, did he, in any way, reserve his rights in respect of them; nor did he lodge any protest in relation to them. He, only, filed the present recourse on January 17, 1977, by means which he seeks, among other things, the annulment of Exhibits A and C, because he contends that he was entitled to a final discharge and to the use of his passport for purposes of travelling.
In the light of all the foregoing facts, and applying thereto the relevant principles of law to which I have already referred earlier in this Decision, I am in serious doubt, to say the least, whether or not the applicant has assented to exhibits A and C freely, and without fear of adverse consequences for him in respect of his university stuties in case he did not agree to leave the ranks of the National Guard on the strength of a temporary discharge (exhibit A) and to travel to. Athens by using a certificate identity (exhibit C); therefore, I cannot hold that, in the circumstances, he has behaved in such a way as to divest himself of a legitimate interest entitling him to make the present recourse, which, consequently, has now to proceed to be determined on its merits.
Order accordingly.