ASPRI ν. REPUBLIC (1979) 3 CLR 490

(1979) 3 CLR 490

1979 September 12

[MALACHTOS, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

CHARALAMBOS ASPRI,

Applicant,

THE REPUBLIC OF CYPRUS, THROUGH

THE MINISTER OF INTERIOR,

Respondent.

(Case No. 54/79).

Time—Within which to file a recourse—Artcle 146.3 of the Constitution—Knowledge of the act from publication or communication starts the time limit—Form of communication—When is knowledge complete—A person suffering damage from an act should apply for any clarification without delay and in any case he has to file a recourse within the time limit provided by the above Article—Recourse against decision refusing exempption from military service—Withdrawal of recourse upon undertaking, to re-examine the matter on production of new medical certificate concerning health of applicant's father—New certificate issued and supplied to respondent—New decision refusing exemption and letter to applicant's counsel informing him of such decision—Said new decision based on new inquiry as a result of the new medical certificate—Applicant not asking for any clarification and not filing a recourse, within the prescribed time limit, upon receiving the said letter—Time limit within which applicant could file a recourse started to run from time of receipt of the said letter because it supplied to him full knowledge of the consequences of the decision of the respondent Minister—Recourse out of time because it was not filed within 75 days from the receipt of this letter.

When the age of the applicant was called up for conscription in the National Guard in January, 1977 he applied to the respondent Authority under section 4 of the National Guard Laws for exemption from service alleging that he was the supporter of his family which consisted of his sick father, his mother and his three unmarried sisters. The respondent turned down his application and as a result he filed a recourse which was later withdrawn on the undertaking of the respondent to re-examine his application after the production of a new medical certificate concerning the condition of his father's health. The father was examined on the 24th January, 1978 and a relevant certificate was issued to him. This certificate was delivered by the father to the District Officer Larnaca who forwarded it, together with his report, to the Advisory Committee, set up under section 4(4) of the National Guard Laws, on the 25th January, 1978. There followed an examination of applicant's case by the Committee which reported to the respondent Minister that on the basis of the facts before it the applicant had not more than three dependants. The Minister then examined the case and following the views of the Advisory Committee rejected applicant's application for exemption.

As a result a letter dated 25th April, 1978 was addressed to applicant's counsel informing him of the rejection. On the 4th November, 1978 applicant's counsel addressed a letter to to respondent and asked to be informed, inter alia, whether a re-examination of his client's case has taken place on the basis of the undertaking by counsel for the respondent in the withdrawn recourse and whether the matter has been put once again before the Advisory Committee in accordance with section 4(4) of the National Guard Laws. Respondent replied, by letter dated 28th November, 1978, that the case has been re-examined on the basis of the undertaking and that the matter was put once again before the Advisory Committee. Hence this recourse.

Counsel for the respondent raised the issue that the recourse was filed out of time, contrary to Article 146.3 of the Constitution, and this point was heard first as a preliminary legal issue. In resolving this issue the question that arose was whether the letter dated 25th April, 1978, supplied to the applicant full knowledge of the consequences of the decision of the respondent.

Held, (1) that individual administrative acts should be communicated to the interested persons, even in cases where the communication is not imposed by law, since as from this communication starts the time limit of the recourse for annulment; that it is not required for the communication to be effected in a sensational form but in a simple administrative notice properly proved; and that this may be given either to the applicant or to his duly authorised advocate (see Conclusions from Case Law of the Greek Council of State 1929 to 1959 page 252).

(2) That knowledge from the publication or communication starts the time limit if and only for that part that it is complete; that complete is the knowledge that allows the interested person to find out for sure and with precision the financial or moral damage which he suffers by the publication or communication of the act; that in order that the knowledge should be complete it is not required—unless the law otherwise provides—the publication or communication of all the elements which result to the keeping of the prescribed forms and of all the elements, which the administration took into account in order to justify its decision; and that it suffices only the mention of the keeping of the forms and a summary of the reasoning to be diligently drafted and since one suffers damage should proceed in time in order to obtain knowledge of the above elements (see Recourse for Annulment by Tsatsos, 3rd edition, page 74 paragraph 30)

(3) That in the light of the above principles and taking into consideration the sequence of events in the present case and in particular the fact that the new medical certificate of 24.1.78 was supplied to the District Officer of Larnaca by the father of the applicant himself, leaves no room for doubt that the decision of the respondent Minister contained in the letter of 25.4.78, was a new decision based on new enquiry as a result of the new medical certificate; that i@@@ any clarification was required the applicant should apply for that without delay to the respondent authority and in any case he had to file his recourse within the time limit of 75 days as provided by Article 146.3 of the Constitution; that from the time the letter of 25.4.78 was received by his advocate the time limit within which the applicant should file his recourse started to run as it supplied to him full knowledge of the consequences of the decision of the respondent Minister; that, therefore, this recourse is out of time because it was not filed within 75 days from the receipt of this letter; and that; accordingly, it must be dismissed.

Application dismissed.

Recourse.

Recourse against the decision of the respondent whereby applicant was not exempted from service in the National Guard.

L.N. Clerides, for the applicant,

Cl. Antoniades, Counsel of the Republic, for the respondent.

Cur. adv. vult.

MALACHTOS J. read the following judgment. The applicant in this recourse prays for a declaration of the Court that the decision of the respondent Minister not to exempt him from service in the National Guard communicated to the applicant on the 28th November, 1978, is null and void and of no legal effect whatsoever.

The grounds of law on which the application is based, as stated therein, are the following:

(a) the decision of the respondent is contrary to section 4(f) of the National Guard Laws 1964 to 1978 in that applicant has more than three dependants and hence is entitled to exemption for service with the National Guard; and

(b) respondent's decision was based on an erroneous and defective assessment of the factual situation of applicant and his family and hence taken in circumstances amounting to a misconception of fact.

One of the grounds of law on which the opposition is based is that the recourse is out of time contrary to Article 146.3 of the Constitution which provides that such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse.

At the commencement of the hearing of this recourse on the application of counsel for the respondent and with the consent of counsel for applicant, this point was heard first as a preliminary legal issue.

The facts of the case relevant to this preliminary legal issue are the following:

The applicant was born in 1959 and he works as a farmer assisting in the cultivation of the fields of his family at Xylophagou village. His father, who is also a farmer, is aged 54 and is suffering from tuberculosis. When the age of the applicant was called up for conscription in the National Guard in January, 1977, he applied to the respondent authority under section 4 of the National Guard Laws for exemption from service alleging that he is the supporter of his family which consists of his sick father, his mother and his three unmarried sisters aged 21, 13 and 10 respectively.

On 5/7/77 he got a negative reply as a result of which he filed Recourse No. 195/77, which was later withdrawn on the undertaking of the respondent to re-examine his application after the production of a new medical certificate concerning the condition of his father's health.

The father of the applicant was examined at the Larnaca Hospital by Dr. Mavrides on 24/1/78 and the relevant certificate was issued to him to the effect that he should avoid excessive fatigue. This certificate was delivered by the father of the applicant to the District Officer of Larnaca who on 25.1.78 despatched it together with his report to the Advisory Committee which is set up under section 4(4) of the National Guard Laws. The said Committee in its turn made the following report to the respondent Minister:

"The Committee has examined today the present case and finds the facts as contained in the report of the District Officer of Larnaca dated 25/1/78 and that on the basis of these facts the following can be based.

The Committee does not see any reason to change its previous decision of 2/7/77. Dr. Mavrides by his recent certificate dated 24/1/78 certifies that the father of the conscript must avoid excessive fatigue. This means that he can work but not excessively and, therefore, the members of his family are depending entirely on him (the father) and from the help of the conscript in the cultivation of their property and so the conscript has not more than three dependants".

The Minister then examined the case and following the views of the Advisory Committee, rejected the application of the applicant. As a result a letter dated 25/4/78 was sent by the Director-General of the Ministry of Interior to applicant's advocate. This letter which is a cyclostyled form for rejection of applications of this kind and is filled in by typewriting to suit the particular case, reads as follows:

"I have been instructed to refer to your letter dated........... by which you apply that your client Charalambos Aspri be exempted from his obligation to serve in the National Guard because of dependants and to inform you that according to the provisions of the National Guard Law your said son cannot be exempted from such obligation since from the examination of the facts of your case it transpired that he has not more than three dependant persons".

On 4/11/78 counsel for applicant addressed the following letter to the Ministry of Interior and Defence:

"Sir,

I have been instructed by my client Charalambos Aspri, of Xylophagou to refer to the undertaking dated 28.11.77 of the counsel for the Republic in recourse No. 195/77, that the application of my aforementioned client would be re-examined in the light of a new medical certificate concerning his father's ability to work, as well as to your letter dated 25.4.1978 and make the following observations:-

(a) Your letter dated 25.4.78 makes no mention of re-examination of the case as was the undertaking of counsel for the Republic dated 28.11.77.

(b) In any case your reply dated 25.4.78 is not duly reasoned in accordance with the provisions of Article 29 of the Constitution.

(c) (c) It is not made clear in your letter whether my client's case was sent to the appropriate committee which has been established under the provisions of section 4(4) of the National Guard Laws, in order to ascertain the facts of the case and send a new report to the Hon. Minister of Interior.

2. In the light of the above you are invited to:

(a) Enlighten me if and whether a re-examination of my client's case on the basis of the undertaking by counsel for the Republic in Court dated 28.11.77, in recourse No. 195/77, has taken place.

(b) If the matter has been put before the Advisory Committee once again in accordance with section 4(4) of the National Guard Laws.

The Director-General of the Ministery of Interior replied by letter dated 28/11/78:

"I have been instructed to refer to your letter dated 4.11.78 with regard to your conscript client Charalambos Aspri, of Xylophagou and to inform you the following:

(a) your client's case has been re-examined on the basis of the undertaking in recourse No. 195/77.

(b) the matter was put once again before the Advisory Committee in accordance with section 4(4) of the National Guard Laws.

(c) The Minister has rejected your client's application for exemption on the ground of dependants having in mind the new report of the District Officer of Larnaca which was accompanied by a new medical certificate concerning the health of the father as well as the new report of the Advisory Committee on the subject."

As a result the present recourse was filed on 26/1/79.

Counsel for applicant argued that the letter of the Director-General of 25/4/78 does not constitute an administrative act as it does not contain anything which could be the subject of a recourse. This letter did not make it clear whether the case of the applicant was re-examined after the father of the applicant was subjected to a new medical examination. Furthermore, in that letter no due reason was given as to why the application of the applicant was rejected.

On the other hand, counsel for the respondent submitted that the actual decision of the respondent Minister was contained in the letter of 25/4/78 and that the letter of 28/11/78, which is the subject of this recourse, is only confirmatory or informatory of that decision and so the recourse is out of time as it was filed after the lapse of 75 days from 25/4/78.

The question that arises in the present case is whether the letter of the Director-General dated 25/4/78 supplied to the applicant full knowledge of the consequences of the decision of the respondent Minister.

It is well settled and accepted as a general principle that individual administrative acts should be communicated to the interested persons, even in cases where the communication is not imposed by law, since as from this communication starts the time limit of the recourse for annulment. It is not required for the communication to be effected in a sensational form but in a simple administrative notice properly proved. This may be given either to the applicant or to his duly authorised advocate. (See Conclusions from Case Law of the Greek Council of State 1929 to 1959 page 252).

Knowledge from the publication or communication starts the time limit if and only for that part that it is complete. Complete is the knowledge that allows the interested person to find out for sure and with precision the financial or moral damage which he suffers by the publication or communication of the act. In order that the knowledge should be complete it is not required—unless the law otherwise provides—the publication or communication of all the elements which result to the keeping of the prescribed forms and of all the elements, which the administration took into account in order to justify its decision. It suffices only the mention of the keeping of the forms and a summary of the reasoning to be diligently drafted and since one suffers damage should proceed in time in order to obtain knowledge of the above elements (see Recourse for Annulment by Tsatsos, 3rd edition, page 74 paragraph 30).

In the light of the above principles and taking into consideration the sequence of events in the present case and in particular the fact that the new medical certificate of 24/1/78 was supplied to the District Officer of Larnaca by the father of the applicant himself, leaves no room for doubt that the decision of the respondent Minister contained in the letter of 25/4/78, was a new decision based on new enquiry as a result of the new medical certificate. If any clarification was required the applicant should apply for that without delay to the respondent authority and in any case he had to file his recourse within the time limit of 75 days as provided by Article 146.3 of the Constitution. From the time the letter of 25/4/78 was received by his advocate the time limit within which the applicant should file his recourse started to run as it supplied to him full knowledge of the consequences of the decision of the respondent Minister.

For the reasons stated above this recourse fails and is dismissed as it was made out of time.

On the question of costs I make no order.

Application dismissed.

No order as to costs.

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